In 2006, Sheriff Charlie Crumpton and Chief Deputy Marty Patterson were traveling east on Highway 28 in Smith County when a vehicle veered into their lane. Crumpton and Patterson conducted a traffic stop. Crumpton testified that upon approaching the driver’s side of the vehicle, he noticed that the driver, Christina Barnett, was “almost belligerent,” “extremely agitated,” and “nervous.”
He further testified that Barnett screamed and yelled at him as he placed her under arrest for careless driving. Patterson testified that he approached the vehicle on the passenger’s side. When the passenger lowered the window, Patterson detected the odors of crystal methamphetamine immediately coming from inside the vehicle.
Patterson asked the passenger, Cynthia McCallum, if there were narcotics or anything illegal in the vehicle. She replied that there was not. A search incident to arrest was performed on the vehicle. In a small black leather bag between the passenger’s and driver’s seats, Patterson found what appeared to be methamphetamine.
McCallum later admitted that she was guilty of possessing methamphetamine and entered into a plea agreement. Barnett was convicted of possession of methamphetamine and sentenced to five years.
On appeal, she argued she was not in possession of the drugs. MCOA affirmed.
Because the methamphetamine was not found on Barnett’s person, the State had the burden of proving that Barnett was in constructive possession of the narcotics.
Constructive possession is established by evidence showing that the contraband was under the dominion and control of the defendant. There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular contraband and was intentionally and consciously in possession of it.
In addition to proving constructive possession, the State was also required to show additional incriminating facts that connected Barnett with the methamphetamine since the methamphetamine was not found on premises in her exclusive control and possession. The car was not in Barnett’s exclusive possession and control because she was not the owner of the car, and McCallum was also in close proximity to the narcotics.
Patterson testified that when the passenger window was lowered, he “detected the odors of crystal methamphetamine immediately coming from inside the vehicle.” Sheriff Crumpton and Patterson testified that Barnett was “almost belligerent,” “extremely agitated,” and “nervous,” and that these traits were consistent with those of a person using methamphetamine.
When questioned about the substance in the black bag, McCallum told Patterson that she and Barnett had bought it from a black male named “M.B.” Patterson also testified that Barnett told him she and McCallum had gone to meet a black male named “M.B.” to purchase crystal methamphetamine. Finally, McCallum gave the following testimony:
Q: Whose meth was this that was found in the car that’s introduced into evidence today?
A: It was a bag that we had both been doing it out of the night before and that morning.
We find that the State proved additional factors sufficient to show that Barnett had constructive possession of the narcotics. This issue is without merit.
Gant, which came out in 2009, clarified that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
In this case, Barnett was arrested for careless driving. Unless she had access to the vehicle at the time of search, using search incident to arrest for the vehicle today would not be possible.