Dontay Walker was the passenger in a car that was driven by Shaundrysus Frazier. Frazier testified that he purchased the vehicle from a friend about one month prior to the stop but that the vehicle was not yet titled in his name.
The vehicle was stopped by Oktibbeha Deputy Sheriff Michael Hunter. Deputy Hunter noticed that the windows of the vehicle were almost completely and illegally black from being heavily tinted. Hunter recognized the vehicle as one he had previously stopped for the same violation. As Hunter passed the vehicle traveling in the opposite direction, he also noticed that both the driver and passenger were not wearing their seat belts.
Walker was visibly nervous as evidenced by his hands shaking. He was talking on a cell phone and would not make eye contact with Hunter. While talking to Walker, Hunter was notified by radio that Frazier’s license was suspended. Frazier was arrested and searched. Frazier had almost $700 cash in his pants pocket.
Hunter told Frazier that Walker could drive the vehicle away because Walker had a valid driver’s license but Frazier refused the offer.
Officer Shawn Word, Starkville P.D., heard that Walker was stopped and knew of Walker’s reputation as a drug dealer so he came to the scene. Frazier had already been taken into custody but Walker was still seated in the passenger side of the vehicle.
Word testified that Walker was talking on a cell phone but ended the conversation when he saw Word approaching. Word noticed the distinctive smell of marijuana emanating from within the vehicle and believed Walker looked nervous. Word observed Walker moving his right foot in a manner that indicated he was trying to push something underneath the passenger seat.
Word had talked with Walker prior to the day of the traffic stop. Due to Walker’s suspicious behavior and the smell of marijuana, Word asked Walker to step out of the vehicle. Deputy Whitfield searched Walker by patting him down and found $1,390 in Walker’s front pants pocket.
Word immediately located a container under the passenger seat. The container contained marijuana and a substantial amount of crack cocaine.
Walker was convicted of possession of marijuana and possession of cocaine and sentenced to 25 years. On appeal, he argued there was no probable cause for the stop and that he was not in possession of the drugs. MCOA affirmed.
A. Stop of car
The U.S. Supreme Court in Whren v U.S., 517 U.S. 806 (1996), stated that the action of an officer stopping a vehicle is reasonable when there is probable cause to believe that a traffic violation has occurred. In McCollins, we said that probable cause for a traffic stop may arise from an officer’s reasonable belief that windows of the vehicle are excessively tinted in violation of law.
Walker does not have standing to argue error in the vehicle search. The MSC said in Spicer that Fourth Amendment rights are personal rights which may not be vicariously asserted.
In this case, a passenger who does not own the vehicle cannot complain about the legality of its search.
In Kerns, MSC said that one may be convicted if he was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. The possession may be actual or constructive. Constructive possession arises from dominion and control over drugs and requires incriminating circumstances to connect an accused to the substance. Proximity alone is not sufficient evidence to prove possession.
Here, Word testified that he saw Walker attempting to conceal something under his seat. Word and Walker had spoken in previous encounters. Word testified that when he pulled the narcotics out from under the passenger seat, and even though Walker could not see inside the vehicle, Walker said that “none of that” belonged to him. Frazier, the driver of the vehicle, testified that Walker had the bag containing the drugs when Walker entered the vehicle.
The facts support the finding of the jury that Walker was in constructive possession of the package containing the contraband, and that he knew the package contained those substances.