On February 19, 2015, Todd Jackson, owner of Tower and Tower Construction, called the Clay County Sheriff’s Department to report that his 2014 Ford F-350 was stolen and had been missing for three days. Jackson told Investigator Terry Scott that his foreman, David Sills, had taken the truck. Jackson was tracking Sills through his fuel card, and the last place Sills had used the card was in Jackson, Mississippi. Investigator Scott issued a “be on the lookout” (BOLO) bulletin for Sills and the truck.
Shortly after the BOLO was issued, Officer Brandon Hernandez with the Starkville Mississippi, Police Department spotted the truck traveling on Highway 12 in Starkville. When other officers arrived, Officer Hernandez stopped the truck at an intersection in Starkville.
Officer Hernandez confirmed that the driver was Sills, the only person inside the truck. Sills was handcuffed and placed in the back of Officer Hernandez’s patrol vehicle. While at the Starkville police station, Sills told Officer Hernandez that he had been “smoking crystal meth all day” and that he was driving his boss’s truck and did not show up for work.
Meanwhile, Starkville Police Officers Lovrent Gaines and Tyler Davis conducted an inventory search of the truck prior to having it towed. Officer Gaines testified that he noticed the driver’s seat was wet and smelled like urine. Officer Gaines recovered a pipe, which contained a rock-like substance similar to what Officer Gaines had noticed on the floorboard.
He also recovered a rock-like substance from in between the driver’s seat and the console, which he described as “black shiny crystal-like.” Officer Gaines said he did not know what the substance was, and he had Officer Davis “test it with a pill kit.” The substance “tested positive for methamphetamine.” The crime lab analyzed the evidence and found it contained 2.09 grams of methamphetamine.
Sills testified at trial that he traveled for work, building and repairing TV towers. He had worked for Coast-to-Coast Tower Service for about eighteen years and was its foreman. He was working a job in West Point, Mississippi, and had been there about three weeks at the time of his arrest. Sills said that he worked with five other crew members and that they shared two work trucks, a F-550 and a F-350. Sills said he drove the F-550 most of the time, while the F-350 was used more as a crew truck.
Sills said he talked to Jackson on February 16, 2015, and told him an ice storm was coming and that the crew would not be able to work for about five to seven days. So Sills wanted to go see his family in Indiana. Jackson did not give Sills permission to leave. Sills then decided to take the F-350 to Dallas, Texas, where his personal truck was located, and then drive to Indiana. Sills said he told Jackson that he was going to quit and that if Jackson did not want that, Jackson could call him back for work after Sills got his personal truck.
Sills said he left in the F-350 the next day on February 17. He said that while he usually drives the F-550, he left the F-550 for the crew to use because it houses a fuel cell on the bed of the truck, which the crew uses to fuel up equipment. According to Sills, when he arrived at Jackson’s house in Dallas, he learned that Jackson had taken Sills’s personal truck and had driven it to West Point. Sills then drove back to back to West Point to get his truck.
Before reaching West Point, Sills stopped at a McDonald’s drive-through in Starkville on the night of February 19. As he pulled out from McDonald’s onto Highway 12, numerous police cars surrounded him. Sills said it scared him so much that he urinated in his pants. Sills got out of the truck, was placed in handcuffs, and was placed in Officer Hernandez’s vehicle. He was taken to the Starkville police station. He was there for about ten minutes before a Clay County officer came and picked him up.
Sills said he spent the night in jail in Clay County and was bonded out the next afternoon by guys who worked for him, who then took him to his truck. Sills said that Jackson had already picked up the F-350 from impound in Starkville. Sills said nobody ever said anything to him about methamphetamine being found in the F-350. When he learned he had been indicted for possession of methamphetamine, Sills “thought it was a joke.”
Sills denied telling anyone that he had been using methamphetamine. He stated that he had “never used methamphetamine in my life.” And he did not know what it looked like. He said the F-350 he was driving was always kept spotless, and he did not remember seeing any type of trash in it except for the McDonald’s bag, which contained the food he had just purchased. He further testified that the floorboard and the floor mats were black.
The jury found Sills guilty of possession of methamphetamine greater than two grams, but less than ten grams, pursuant to Mississippi Code Section 41-29-139(c)(1)(C). On appeal, Sills claimed his motion to suppress should have been granted and that he was not in constructive possession of the drugs. MSC affirmed.
A. No standing
Sills maintains that Starkville police’s search of the vehicle does not meet either exception provided by SCOTUS in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the Court held that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Sills claims that he had already been removed from the scene when the search took place, and he was not arrested based on the suspicion of transporting or being in possession of any illegal narcotics. Thus, he argues neither Gant exception was present here.
Sills further claims that Sergeant Carrouthers testified at trial that there was no inventory list of what was found in the vehicle, and he was not sure if the search conducted was an inventory search or a search incident to arrest.
The State argues that Sills had no standing to challenge the search of the truck because he stole the truck and thus had no reasonable expectation of privacy under either the federal or state constitutions. The State further contends that even if Sills had standing, Gant is inapplicable when an inventory search was conducted, rather than a search incident to arrest.
While there does not appear to be a Mississippi case directly on point*, the overwhelming majority of decisions from other jurisdictions hold that the thief of a vehicle does not have a sufficient privacy interest in the car to challenge the search of it.
This Court has held that it is permissible for officers to conduct an inventory search of the vehicle when the circumstances require it to be impounded by the officers, regardless of the reason for the necessary impoundment. See MSC Black v. State, 418 So. 2d 819, (Miss. 1982). This is for the protection of both the vehicle owner and the impounding officers. This is an administrative task, that must be conducted pursuant to standard, routine police procedures. See Mitchell.
The policy or practice governing inventory searches should be designed to produce an inventory; it must not be used as a ruse for a general rummaging in order to discover incriminating evidence. See SCOTUS Florida v. Wells, 495 U.S. 1 (1990). An officer’s testimony about the existence of such policy ordinarily will be sufficient. See Motton.
Officer Gaines testified at the suppression hearing that it is standard procedure for the police department to do an inventory search of a vehicle before it is impounded. Because the F-350 had been reported stolen and because the owner of the vehicle was not there to move it, officers conducted an inventory search of the truck. During the search, Officer Gaines found a substance between the driver’s seat and the console that he believed was methamphetamine. He also found a pipe he believed was used to smoke methamphetamine. Officers conducted a field test on the substance, which tested positive for methamphetamine.
Officer Gaines said that while it was the department’s policy and procedure to use an inventory sheet to list the items found, he did not recall using an inventory sheet in this instance. Officer Gaines stated, however, that he documented in his report what he recovered from the vehicle.
Even assuming that the Starkville police had failed to comply with the department’s policy and procedure to use an inventory sheet to list the items found in the vehicle, we need not decide in this instance whether such a failure would invalidate an otherwise valid inventory search. Irrespective of whether Starkville police conducted a valid inventory search or not, Sills still had to establish that he had a legitimate expectation of privacy in the reportedly-stolen vehicle that was searched. Sills failed to do so. Accordingly, we find that this issue is without merit and that the trial court properly denied Sills’s motion to suppress.
B. Constructive Possession
Sills claims that the State failed to demonstrate that he ever touched the methamphetamine found in the truck or that he ever exercised dominion or control over it. He argues that at the time of the stop, no one mentioned to him that suspected methamphetamine was discovered. Sills further claims that the F-350 was a crew truck that he rarely drove.
Sills contends that Naylor controls the outcome here. In that case, MSC found that the only evidence linking the defendant to the cocaine was the defendant’s close proximity to the cocaine when he was found in the bathroom with his codefendant who was attempting to flush the cocaine down the toilet which was not enough for constructive 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.
MSC has also said that when contraband is found on the premises which is not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession. See Kerns. Usually, in such situations, the state must show additional incriminating circumstances to justify a finding of constructive possession.
Based on our review of the trial evidence, we find that ample evidence was presented to support the jury’s guilty verdict.
While Sills did not own the truck, he was in possession of it from February 17 until the night of his arrest on February 19. According to Sills, he was alone in the truck for at least thirty-two hours from the time, as he claims, it took him to drive from West Point to Dallas and back to Mississippi. Sills claimed that the F-350 was kept spotless, and he never saw a pipe or any type of contraband in the truck. Sills also indicated in his testimony that he did not believe there was a pipe or methamphetamine inside the F-350 at the time he was pulled over by the Starkville police. And Sills denied ever making the statement to Officer Hernandez that he had been “smoking crystal meth all day.”
It is clear that the jury believed the State’s evidence that Sills had admitted to “smoking crystal meth all day.” It is also clear that the jury believed that contrary to Sills’s testimony, a pipe was in fact found inside the truck that Sills was driving, which could be used to smoke the crystal meth he purportedly told Officer Hernandez he had been smoking. Given this evidence, it was not unreasonable for the jury to infer that the substance discovered by the police was methamphetamine that, while not physically found on Sills’s person, had belonged to Sills nonetheless.
The lack of evidence described in Naylor is not the case here. Not only was Sills in close proximity to the methamphetamine found in the truck, Sills also was in close proximity to paraphernalia used to smoke methamphetamine. And Sills had admitted smoking methamphetamine throughout the day before being pulled over by Starkville police. All of this evidence when taken together warrants the jury’s finding that Sills was aware of the methamphetamine discovered in the F-350 and that he was intentionally in possession of it. Accordingly, we find that this issue is without merit.