In 1993, Sergeant Potts and Captain Randy Sibley of the Mississippi Highway Patrol were working on Interstate 10 in Jackson County, Mississippi. Inspector Bruce Ford, Jr. and Inspector Wayne Dupont of the Mississippi Public Service Commission (MPSC) were working in conjunction with Potts and Sibley, who used a radar device to determine that an 18 wheel tractor-trailer truck which Thomas Hamm was driving, and his wife Terri Hamm was riding in as a passenger, was speeding.
Potts and Sibley waited until Hamm drove into the weighing station off the Interstate, where MPSC Ford and Dupont were waiting. After Sibley issued a warning citation for speeding to Thomas Hamm, Ford began an inspection of the truck. It was determined that Thomas Hamm owned both the Peterbilt tractor and the trailer which it was pulling.
Sergeant Vernon Gazzo arrived on the scene and obtained Thomas Hamm’s permission to search the cab of his Peterbilt. As Terri Hamm stepped down from the truck, Gazzo saw a one-foot square cutting board with a single-edged razor blade and a gray tube lying there with it between the seats. Gazzo then searched the closet in the sleeper behind the truck seats, where he found a red tin can which contained a small quantity of marijuana.
Inspectors Ford and Dupont asked Thomas Hamm to open the refrigerated trailer, which was locked with a padlock. Mr. Hamm unlocked the padlock with his key, and Dupont entered the trailer to inspect the load. Toward the front of the trailer, Dupont observed a load of limes which he testified were spoiled, rotten, and molded. In front of the limes he found four U-Haul cardboard boxes containing several packages of marijuana, later determined to weigh 196 pounds, which had been individually wrapped in transparent wrap.
Both of the Hamms were arrested, and Sergeant Potts drove Hamm’s vehicle to a truck-freight yard in Gulfport where he left it for the night. The next morning as he completed the search of the trailer, Potts found a small brown box wrapped in gray duct tape which contained methamphetamine, and $6,000 currency wrapped in a bundle.
Terri Hamm was convicted of possession of more than one kilogram of marijuana with intent to distribute and possession of methamphetamine and sentenced to five years. Tommy Hamm was also convicted but they did not list his sentence.
MCOA affirmed as to both. With respect to Terri Hamm, they noted that she testified that she stayed at a hotel one night during this trip by herself while her husband unloaded freight. There were two telephone calls made from the hotel room to pay phones in Miami that night. Officers testified that Miami is a destination for controlled substances. In addition, the presence of the paraphernalia and small quantity of marijuana in a tin can in the closet of the sleeper of her husband’s truck, and her accompaniment of her husband from Tennessee to South Texas to Florida was sufficient.
Terri Hamm appealed to MSC, arguing she was not in possession of the drugs. MSC agreed with Terri Hamm and reversed her conviction.
In Curry v. State, 249 So.2d 414 (Miss. 1971), we stated:
There must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
A presumption of constructive possession arises against the owner of premises upon which contraband is found. However, when contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession. The state must show additional incriminating circumstances to justify a finding of constructive possession.
A. Cases where constructive possession has not been found
In Hudson v. State, 362 So.2d 645 (Miss. 1978), marijuana was secreted under the hood of a car near the radiator. The car was owned by Bobby Blue, who Randolph and Vincent Hudson had known for about three weeks. Vincent was asleep in the car and Randolph was inside a cafe when the police discovered the drugs.
We said that even the proximity is questionable since the marijuana was not inside the car, but secreted under the hood of the car. Also, even if such were sufficient to satisfy the proximity requirement, nevertheless, there is a total absence of “other incriminating circumstances” as required by the Curry decision. We also note that the test of Curry is dominion and control over the marijuana not dominion and control over the automobile.
In Cunningham v. State, 583 So.2d 960 (Miss. 1991), Cunningham was a passenger in a truck that he did not own. Upon a consensual search given by the driver, a pill bottle on the passenger side floorboard contained cocaine. We found that the prosecution did not prove that prove Mr. Cunningham “knowingly or intentionally” possessed the cocaine found inside the truck.
In Fultz v. State, 573 So.2d 689 (Miss. 1990), Fultz was pulled over for erratic driving and arrested after failing three field sobriety tests. Upon conducting an inventory search of the vehicle Fultz was driving, a blue duffel back containing several bags of marijuana was found in the trunk. A small amount of marijuana was also found on Fultz when he was searched at the Desoto County Jail. Fultz denied any knowledge of the marijuana in the trunk, and the vehicle in which the contraband was found belonged to his sister.
In this case, the only additional incriminating circumstance was that the defendant had a small amount of marijuana on his person at the time of the arrest. We hold that this factor, standing alone, is insufficient to prove any connection between the contraband and this defendant. The other facts that the state relies on to prove a connection between the contraband and this defendant are that he admitted smoking marijuana and that he had made several “unexplained stops during the night” and that it would be illogical for someone to leave their drugs in a vehicle that someone else would drive. We fail to see how these “facts” tend to connect the defendant to the drugs.
We cannot help but wonder why the police department failed to dust the trunk for fingerprints or for that matter the bags themselves. Also why didn’t they try to determine if the defendant owned the duffel bag or any of the other items in the trunk. This could have bolstered their case considerably. It also would have been helpful to question the owner of the car. In light of this poor police work, and the absence of any evidence connecting the defendant with the trunk or any of its contents, we have no choice but to reverse this conviction and discharge the defendant.
In Jones, Jones and Jawara were stopped by two deputy sheriffs. A search of the vehicle yielded a jacket in the back seat which contained a bag of marijuana. Jones and Jawara were arrested, and a subsequent inventory search of the vehicle was conducted. A revolver was found in a brief case in the back seat, a set of scale was found in the car, and approximately twelve pounds of marijuana was found in the trunk of the automobile.
MSC reversed finding there was nothing to connect Jones to this marijuana except for his presence in the car. Jones was not connected with the jacket in the backseat of the car containing marijuana; also, Jones did not own or drive the car in question.
In Ferrell v. State, 649 So. 2d 831 (1995), contraband was located in a matchbox between the front seats of the vehicle. As the operator of the car, Ferrell had dominion and control over the contraband discovered in the car. However, he was not the owner of the car; therefore, the State was required to establish additional incriminating circumstances in order to prove constructive possession.
The State claims that the location of the matchbox next to the driver’s seat and the 15 hours which Ferrell had possession of the car amounted to additional incriminating circumstances. These contentions are incorrect. Just as in Fultz, the contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. The mere fact that the matchbox was only a matter of inches from where the defendant was sitting, rather than in the trunk, does not overcome the fact that the crack was cloaked. Furthermore, Ferrell’s possession of the car for a mere 15 hours does not qualify as an incriminating circumstance.
In Berry v. State, 652 So.2d 745 (Miss. 1995), we held that there was insufficient evidence to prove possession of cocaine even though Berry handled a package which contained crack cocaine. These facts are not sufficient to evince that Berry had any control over the drugs under Callahan. He simply placed them in the glove compartment at Anderson’s request, in Anderson’s car, and in Anderson’s presence. There was no evidence that he owned the drugs, paid for them, or controlled them in any manner.
B. Our case
There was no competent evidence which linked Terri Hamm to the any of the contraband. There was no evidence that she made the telephone calls to Miami, nor was there any evidence that she was in the room when the telephone calls were made. The only evidence the State brought forth regarding the telephone calls was that the calls were made from Hamm’s motel room to Miami, which is a destination and distribution point for illegal narcotics.
The fact that marijuana and marijuana cigarettes were found in the cab of the truck is of no help to the State’s case.
The contraband was located in the locked trailer of the truck in which Terri Hamm was riding in as a passenger. Thomas Hamm was both the owner and operator of the truck. Terri Hamm did not have a key to the trailer which was locked. There was no other competent evidence to link her to the contraband, and therefore, because there was insufficient evidence to support the conviction, Terri Hamm’s conviction is reversed and rendered.