Quantity of drugs along with smell and subject’s demeanor enough for constructive possession


In 1993, Deputy Richard Thomas, an officer assigned with the canine division and criminal patrol of the Hinds County Sheriff’s Department, was on routine patrol when he observed a white Horizon traveling at an excessive speed. Thomas followed the vehicle, clocking the car traveling 65 miles an hour in a 55 mile an hour zone. The officer turned on his blue light, and the driver of the car, Charles Lee Moore, Jr., immediately pulled over to the shoulder of the interstate.

Thomas requested Moore’s driver’s license and asked if Moore owned the car. Moore identified the passenger, Joe Fuente, Jr., as the owner. Thomas confirmed Fuente was the owner and asked to see the insurance paperwork on the car. As Fuente opened the glove box to retrieve the requested information, Thomas saw two boxes of ammunition and asked Fuente if there were any guns in the car. Fuente answered affirmatively. Thomas requested and received permission to get the guns out of the vehicle.

Thomas entered Fuente’s car from the passenger side, leaned down and reached under the seat to get the guns where Fuente had indicated they were located. As he did so, Thomas detected the strong smell of marijuana. Thomas found a .0380 caliber pistol and a nine millimeter pistol under the seat. The officer then took his canine, Brigg, out of the patrol car and led him around Fuente’s vehicle. Thomas testified when the dog alerted Fuente and Moore looked at each other but said nothing.

Fuente refused the officer’s request to search the car. When Thomas asked if Fuente had anything to hide inside the car, Fuente responded, “You are just not looking inside my car.” The officer noted Moore and Fuente were becoming increasingly fidgety and belligerent and called for backup.

When the backup officers arrived, Thomas searched the vehicle and uncovered five bundles of marijuana secreted inside the rear door panels. Upon discovering the first bundle, Thomas showed it to Moore and Fuente. The two men dropped their heads and looked at each other. At no time did Fuente indicate the presence of the marijuana in the door panels of the car was unknown to him. More than $400 was recovered from Fuente’s person. Fuente refused to sign a receipt for the money recovered.

Fuente testified Moore hired him for $200 plus expenses to drive Moore from Kerrville, Texas to Mississippi. Fuente loaned his car to Moore to load personal items into it the day before they were to leave. Fuente testified he had no knowledge of the marijuana being in his vehicle. Two witnesses, Larry Creech and Valerie Bario, testified they saw Moore conceal the marijuana inside the door panels of Fuente’s car outside the presence of Fuente the afternoon before Fuente and Moore traveled to Mississippi. Neither told Fuente what Moore had done.

Fuente was convicted of possession of more than a kilogram of marijuana with intent to distribute and sentenced to 20 years. On appeal, he argued he was not in possession of the marijuana. MCOA affirmed.


It is undisputed that Fuente was the owner of the vehicle in which the marijuana was discovered. As the owner of the vehicle where the contraband was found, Fuente is presumed to have constructive possession of the marijuana.

MSC said in Curry v State, 249 So. 2d 414 (1971), that what constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that the defendant was aware of the precedence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown establishing that the drug involved was subject to his dominion and control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

In Powell v. State, 355 So.2d 1378 (Miss. 1978), MSC said that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable.

According to Fuente, he loaned his car to Moore the day before the fateful trip to Mississippi, giving Moore the opportunity to hide the bundles of marijuana in the vehicle without Fuente’s knowledge. Thus, the car was not in the exclusive control and possession of Fuente and, under the rule stated in Powell, additional incriminating facts must connect Fuente with the contraband. Fuente points to Ferrell.

In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), Ferrell had been stopped for speeding with a suspended driver’s license. After taking Ferrell to the patrol car, the officer returned to Ferrell’s car to get the car keys and found a matchbox containing cocaine between the seats. MSC stated that Ferrell, as the operator of the car, had dominion and control over the contraband discovered within the car. But since he was not the owner, additional incriminating circumstances had to be shown to prove constructive possession of the contraband.

MSC went onto say that the location of the matchbox next to the driver’s seat and the defendant’s possession of the car for only 15 hours were both insufficient to show Ferrell had constructive possession of the contraband. The State failed to prove additional actual incriminating circumstances to establish constructive possession.

In our case, Fuente owned the car in which the contraband was found and was present when it was discovered. Although Fuente asserts he was unaware of the hidden marijuana, the State presented circumstantial evidence showing Fuente knew or should have known of its presence. The jury was presented with evidence that the automobile belonged to Fuente and that Moore may have placed the marijuana in Fuente’s car. Fuente testified he had loaned his car to Moore for a few hours prior to their departure for Mississippi. Defense witnesses, Creech and Bario, testified they saw Moore load the bundles into Fuente’s vehicle outside Fuente’s presence. The jury could have found Fuente was unaware of the marijuana.

The jury, however, was justified in finding that Fuente did have constructive possession over the marijuana found in his car. Fuente drove the car approximately eight hours before permitting Moore to drive. Fuente remained in the car as a passenger. The pungent smell of the marijuana permeated the inside of the vehicle and was readily detected by the officer when he entered the vehicle to retrieve the firearms.

The jury could reasonably infer Fuente could smell the substance after traveling in the small car with Moore for approximately eight to ten hours. Further, Fuente’s demeanor at the time the officer discovered the contraband was not consistent with lack of knowledge of its presence in the car. There was sufficient additional incriminating evidence to establish Fuente’s constructive possession of the marijuana.

In view of Fuente’s ownership and presence in the car where the bundles of marijuana were found and other incriminating circumstances, there was sufficient evidence to establish Fuente’s constructive possession of the contraband. Proof of a defendant’s intent may be, and often must be, based upon reasonable inferences drawn from circumstantial evidence.

This court concludes that the combination of the quantity of the marijuana discovered in Fuente’s vehicle, the packaging of the marijuana consistent with drug trafficking, and the more than $400 taken from the person of Fuente was sufficient evidence for the jury to draw a reasonable inference of an intention to distribute.