Consent to search pouch in hotel revealed drugs


In 2012, Investigator Matt Haley and Sergeant Christopher Hearn of Harrison County S.O. were participating in a drug round up, where a group of law enforcement officers went out together and attempted to serve several outstanding warrants. They had an arrest warrant for Ryan O’Donnell and discovered he was at the Broadway Express Inn, room 132, in Biloxi, Mississippi.

When they got no answer at the door, they went to management who advised that it was past checkout time and agreed to assist with access. When officers entered the room, O’Donnell was getting out of bed. Officers placed him in handcuffs and asked if he had ID.  O’Donnell said he did but he did not know where it was at the moment.

Officers asked for permission to look around and he said okay. O’Donnell directed the officers to the area near the television where Haley found a pouch. He picked it up, felt it, and determined there to be some sort of card. Thinking he had located an identification card, he unzipped the pouch. Inside of the pouch, he found O’Donnell’s Mississippi identification card, a VISA card, and methamphetamine.

He was convicted of possession of methamphetamine and sentenced to eight years. On appeal, he argued consent was invalid, Haley exceeded the scope of consent, and he was not in possession of the drugs. MCOA affirmed.


A.  Consent was knowingly and voluntarily given

When determining whether a consent to search is voluntary and not the result of coercion, the totality of the circumstances is examined. Consent to a search not otherwise authorized by law is valid if the person searched is aware he has the legal right to refuse. The person must knowingly and voluntarily waive the right not to be searched.

However, the State is not required to demonstrate knowledge; rather, the burden is on the defendant to show impaired consent or some diminished capacity.

Facts to consider in determining whether consent was voluntary are: Whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. The court must also look to the individual’s maturity, impressionability, experience and education. Further, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent. If the consent occurred while the defendant was being generally cooperative, the consent is more likely to be voluntary.

Though O’Donnell had been placed in handcuffs by Haley after his identity was initially determined, O’Donnell was extremely cooperative in agreeing to the search, and was not chemically impaired that morning.

Officers made no threats or promises to O’Donnell when his consent to search for his identification was made. Instead, O’Donnell assisted the officers in the search by directing them to the television stand area to find his identification, where they found the pouch.

B.  Haley did not exceed scope of consent

The U.S. Supreme Court in Florida v. Jimeno, 500 U.S. 248, 251 (1991), said that the standard for the scope of a suspect’s consent under the Fourth Amendment is objective reasonableness: what would the typical reasonable person have understood by the exchange between the officer and the suspect? A suspect may limit the scope of the search to which he consents.

In O’Donnell’s case, he gave Haley consent to search for the identification, and directed him towards the area near the television. Haley saw the zipped pouch in this area, picked it up, and felt what might be an identification card. He unzipped the pouch and found the card. The drugs were in the pouch with the identification card; so it cannot be said that the officer exceeded the consent to search.

C. Possession

The two essential elements of drug possession are (1) knowledge and (2) possession. To support a conviction for possession of a controlled substance, there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. See Glidden.

Possession of a controlled substance may be actual or constructive. See MSC Johnson. O’Donnell did not have actual possession of the methamphetamine; so he was convicted under the theory of constructive possession. To establish constructive possession, the drug merely has to be found near the defendant in a place over which the defendant exercises dominion or control.

But a defendant’s proximity to the drugs is not determinative in establishing constructive possession. See MSC Knight. When illegal substances are found on premises not owned by the defendant, the State must show other incriminating circumstances, in addition to proximity, in order to prove constructive possession. See MCOA Cheatham.

O’Donnell argues the State failed to prove beyond a reasonable doubt that he knowingly and intentionally possessed the controlled substance, and that the white powdery substance found in the common area of the motel room was methamphetamine. We disagree. Investigator Haley testified that O’Donnell admitted the white pouch was his, and directed Haley to it in order to locate his identification card. Inside the pouch, Haley found O’Donnell’s ID card, a VISA card, and a clear plastic bag containing an off-white powder substance.

Although O’Donnell denied that the methamphetamine was his, the other items, including the pouch, he claimed were his possessions, which he had brought to the motel. The pouch was on the TV stand in front of O’Donnell’s bed, exactly where he directed Investigator Haley to search for his identification card. According to this incriminating evidence, O’Donnell was in constructive possession of the methamphetamine.