In 1997, John T. Frazier and his girlfriend, Angie Sutton, were stopped for questioning in a parking lot in Union County, Mississippi. Frazier was driving a tractor trailer truck owned by Thorton Farms. Several officers asked to search the truck, and Frazier first asked if the officers had a warrant and if he could call his boss to get the boss’s permission for the search.
Frazier later consented after telling the officers that he was only the driver of the truck not the owner. While conducting the search, the officers opened an unlocked tool box that was attached to the outside of the truck on the passenger side below a high step up door. Looking inside this box, the officers found various items such as a milk crate, an oil can, and tools.
Upon examining the STP oil can, Officer Mike Foreman noticed a fake bottom. He opened the bottom and found a plastic bag with white powder along with eighteen smaller bags. The powder was determined to be a mixture of amphetamine and methamphetamine weighing 40.01 grams (1.41 ounces). While the police were conducting the search, Frazier was sitting in a patrol car with Officer Chuck Smith.
The State presented testimony that at the exact time the STP oil can was found, Frazier began clutching his chest and acting as if he could not breathe. The State presented further evidence that after the drugs were found, Frazier returned to his normal condition and needed no medical assistance. Subsequently, Frazier was arrested.
A consensual search of Angie Sutton’s house on the same night produced several baggies with at least one apparently containing methamphetamine residue. In her testimony at trial Sutton stated that she had removed the baggies from Frazier’s home when she had been cleaning it while he was out of town.
Frazier was convicted of possession of methamphetamine with intent to distribute and sentenced to 20 years. On appeal, he argued he was not in possession of the drugs. MCOA agreed with Frazier and reversed.
The State may establish constructive possession by evidence showing that the contraband was under the dominion and control of the defendant. A presumption of constructive possession arises against an owner of premises upon which contraband is found. However, when contraband is found on premises which are not owned by a defendant the State must show additional incriminating circumstances to justify a finding of constructive possession.
This court and the MSC have consistently held that proximity is an essential element to establish constructive possession, but by itself is not adequate in the absence of other incriminating circumstances. Additionally, where the defendant is on the premises of another, or as in the case at bar, operating the vehicle of another, the State must prove as essential elements that the defendant had dominion and control over the contraband and knowledge of the presence and character of the cocaine.
In this case, the State failed to show additional incriminating circumstances to justify a finding of constructive possession. The State established the following facts which it would construe as sufficient to prove Frazier’s guilt:
1. The one baggy containing methamphetamine was found in a truck that had been in Frazier’s possession for twenty-five and one-half hours after having been in the possession of Jim Adams for fifteen days prior to Frazier’s driving the truck. Additionally, the truck and the unlocked toolbox had been parked unattended for one hour prior to the police search of the vehicle.
2. Baggies with methamphetamine residue were found, not at Frazier’s residence, but at Sutton’s home which she claimed she removed from Frazier’s home.
3. Frazier refused consent to the police search stating that he wanted to call his boss to obtain the boss’s permission before allowing a search of his truck.
4. Frazier exhibited some behavior which the police inferred to be physical distress of some sort at the time the toolbox was being searched. The State claims that Frazier’s actions in faking a heart attack amounted to incriminating circumstances.
The State incorrectly asserts that Frazier’s possession of the truck for twenty-five hours qualifies as an incriminating circumstance. The circumstances cited in this case are insufficient to show that Frazier exercised dominion and control over the STP can. The STP can was in an unlocked toolbox on the outside of the truck accessible to anyone. Although Frazier had been driving the truck that day, the evidence established that other drivers had access to the truck. Furthermore, Frazier’s fingerprints were not found on the STP can or the plastic bags containing the contraband.
The State would further offer, as additional incriminating evidence, baggies with methamphetamine residue not found in Frazier’s possession or control, nor at his place of residence, but allegedly taken by Angie Sutton from Frazier’s residence at a time when he was out of town.
Additionally, in order to affirm this conviction we must infer that Frazier’s physical distress, as reported by the arresting officers, amounts to an admission of guilt.
In Cunningham v. State, 583 So.2d 960 (Miss. 1991), the MSC reversed a constructive possession conviction based, in part, on the officers’ assuming Cunningham knew there was contraband in the car in which he was riding because he repeatedly looked through the truck’s rear window at the officers after they turned on their blue lights. MSC found this insufficient corroboration as they doubted anyone who has found an emergency vehicle with flashing lights behind him has not turned and looked at such vehicle.
We find the State’s or the jury’s assumption that Frazier was faking a heart attack rather than experiencing extreme stress in the situation in which he was placed too tenuous to sustain this conviction. This argument fails to show that the contraband was under the dominion and control of the defendant.
Finally, the State asks us to consider Frazier’s refusal to allow a police search of the vehicle until he placed a call to his boss as incriminating evidence. Making this leap in reasoning comes very close to penalizing a citizen for exercising his constitutional right against unreasonable search under the Fourth Amendment of the U.S. Constitution and Article 3 section 23 of the Mississippi Constitution.