even if officer loses sight of object thrown, subject can still be charged with actual possession of drugs


In 1998 Deputy William Rouse and Deputy Otis Dyer of the Franklin County Sheriff’s Department were patrolling with Agent Art Thomas of the Mississippi Bureau of Narcotics in Bude, Mississippi. Upon noticing a car with the light out on its rear license plate, Deputy Rouse followed the vehicle and turned on his blue lights to signal the driver to pull over.

The driver of the car, Terry Lee, then ran through a stop sign and fled from the officer, pulling into an apartment complex parking lot and tossing something out the window before ultimately stopping in the next yard. Deputy Rouse told Deputy Dyer and Agent Thomas to search the parking lot where Lee threw something out the window. Upon searching, Deputy Dyer found a bag of marijuana and a chapstick vial which contained thirteen rocks of crack cocaine. Officer Rouse testified these items were consistent with what he perceived he had seen Lee throw from the car window.

Terry Lee was convicted of possession of cocaine and sentenced to 16 years. On appeal, he argued this was too circumstantial to be convicted. MCOA affirmed.


Lee argues essentially that since all the evidence was circumstantial, the jury should not have reached the conclusion it did.

The MSC addressed a similar situation in Boyd v. State, 634 So 2d. 113 (Miss. 1994). In Boyd, the officer testified he saw Boyd throw something across the bedroom and another officer found two rocks of crack cocaine in the area where the officer saw Boyd make the toss. The Boyd court referred to the case of Hicks v. State, 580 So. 2d 1302 (Miss. 1991).

Hicks clearly stands for the proposition that actual possession of drugs can be established by testimony from an officer that he observed the defendant tossing an object which was subsequently located at the same site and, upon examination of the object, it was determined to be a controlled substance.

As well, the Boyd court cited Givens v. State, 618 So. 2d 1313 (Miss. 1993), which is factually similar to today’s case. In Givens, the police officer testified that he saw the defendant throw a bag down to the ground, though the officer lost sight of the bag for a short period of time, no fingerprints were found on such bag, and the officer had not previously searched the grounds near where the bag fell. The officer subsequently identified the bag containing the cocaine as the same item he saw the defendant throw to the ground. The Givens court found that the officer’s testimony constituted direct evidence placing the controlled substance within the physical possession of the defendant.

The present case is not unlike Boyd or Givens or Hicks. Finding these cases to be controlling for the described reasons, we affirm Lee’s conviction as a reasonable fair-minded juror could find the testimony presented to be incriminating beyond a reasonable doubt.