Facts
In 2003, authorities with the Indianola Police Department received a tip that Jerry Ford and Tracy Dixon were leaving Ford’s residence in a blue Mazda and that they would be carrying illegal drugs.
Upon stopping the Mazda, Officer Ronald Ragon was joined by a patrol car containing Officers Edrick Hall and Tony Cooper. When the second patrol car arrived, the three occupants of the Mazda – Ford, Dixon, and Markeita Echols – exited the car and fled on foot.
Hall began a foot pursuit of Ford, while Cooper pursued Dixon on foot. Hall observed Ford tossing an object from his body onto the ground nearby. Hall testified that before he ultimately apprehended Ford, Ford stopped and bent down in a wooded area. After securing Ford, Hall returned to the area where he saw Ford throw the object, and recovered a package containing what later proved to be 13 or 14 individually wrapped rocks of crack cocaine (13.5 grams).
The next morning, Hall returned to the wooded area where he saw Ford stop and bend over, and there Hall found $1,521 in cash. The serial number on one of the $100 bills recovered from the wooded area matched that of a bill used by a confidential informant to purchase drugs from Ford during the morning of the traffic stop.
Cooper testified that, during his lengthy pursuit of Dixon, he saw Dixon throw a small, white object to the ground. After apprehending Dixon, Cooper immediately revisited the area where he saw Dixon throw the object. Cooper testified that he recovered a small aspirin bottle containing approximately 75 small rocks of crack cocaine (6.5 grams).
Ford and Dixon were convicted of possession of cocaine with intent to distribute and each sentenced to 30 years. In the trial, both Ford and Dixon were found to be in constructive possession of the entire 20 grams of cocaine. MSC affirmed both convictions but noted that there was no constructive possession by either Ford or Dixon in this case.
Analysis
A. Constructive Possession in General
Possession of a controlled substance may be actual or constructive, individual or joint. 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.
We said in Vickery v State, 535 So. 2d 1371 (Miss. 1988) that mere association with the person who physically possessed the controlled substance is insufficient. Essentially, considering the totality of the circumstances, there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband, and absent this evidence, a finding of constructive possession cannot be sustained.
As Ford and Dixon do not argue physical proximity, our inquiry is narrowed to whether the evidence shows beyond a reasonable doubt that Ford and Dixon each constructively possessed, had dominion or control over, the cocaine found on the other.
In previous decisions, this court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.
Since Ford owned the car he was driving when the police officers stopped the defendants, the evidence concerning him will be analyzed under this first set of cases, and the evidence against Dixon, who has no purported ownership interest in the car, will be examined under the second set of cases.
B. Constructive Possession when Subject owns the House/Car
One who is the owner in possession of the premises, or the vehicle in which contraband is kept or transported, is presumed to be in constructive possession of the articles found in or on the property possessed. The presumption of a constructive possession, however, is a rebuttable presumption and must give way to the facts proven.
The relevant facts connecting Ford to the 6.5 grams Dixon actually possessed include: (1) Ford owned the car he was driving when the police stopped the defendants, (2) Dixon was a passenger in the car with Ford when Ford was pulled over in a traffic stop, and (3) the arresting officer identified Dixon as being in actual possession of six and a half grams of cocaine at the time of the traffic stop.
In Hamburg v. State, 248 So. 2d 430 (Miss. 1971), Rodney Hamburg was the owner and operator of the vehicle where drugs were found. After stopping the car, a search by police officers led to the discovery of pills of LSD on Hamburg’s brother, who occupied the front passenger seat.
We reversed the conviction of Rodney Hamburg for possession, finding that the State not only failed to connect the driver with the possession of the contraband (except by the presumption of constructive possession), but the witness for the State identified the person in possession of the LSD to be Gary Hamburg and not Rodney Hamburg, the driver. Thus, the State denied the presumption of constructive possession by showing facts of actual possession to be in another other than the owner and operator of the vehicle.
This court finds that like in Hamburg the evidence is insufficient to show that Ford had dominion and control over the drugs actually possessed by his passenger. Thus, Ford was not in constructive possession of the cocaine actually possessed by Dixon.
C. Constructive Possession when Subject does not own the House/Car
C1. Exertion of Control Over Premises While Aware Substance Was Present
In Blissett, we found constructive possession when the defendant was driving the car where marijuana was found and the car smelled strongly of unburned marijuana.
C2. Inference of Participation In Processing Substance
In Kerns, we found constructive possession when the defendant was found at an operating methamphetamine laboratory which smelled strongly of ether, was surrounded by materials for processing the substance for recreational use and a handgun, and was next to foil and filters, both of which tested positive for the substance.
In Fox v. State, 756 So. 2d 753 (2000), we found constructive possession when the defendant was found with a pair of scissors in his hand while standing near containers with freshly cut marijuana in his mother’s house and with no one else in the house was shown to have had a substantial connection to it or control of it.
The facts connecting Dixon to the 13.5 grams of cocaine Ford actually possessed were that: (1) Dixon was a passenger in the car Ford was driving when the police stopped the car and (2) the state’s witness identified Ford as being in actual possession of the substance which Dixon allegedly constructively possessed.
In this case, there is nothing to connect Dixon to the cocaine Ford had except Dixon’s presence in the car with Ford. That fact contributes to a showing of physical proximity, but presence alone is insufficient to establish constructive possession.
D. Conclusion
With regard to joint control of the cocaine, the evidence leaves reasonable doubt that such a relationship existed, suggesting, instead, that each defendant was handling his cocaine for distribution separately.
Dixon physically possessed 75 small rocks of cocaine in an aspirin bottle worth about $20 each, totaling 6.5 grams in weight, while Ford had 13 or 14 individually wrapped larger rocks worth about $100 each and weighing a total of 13.5 grams.
The difference in denomination, weight, and size of drugs in possession of each defendant raises the possibility that each was handling his drugs independently of the other. The facts simply do not rise to the level of establishing dominion and control or creating an inference of constructive possession.