In 2006, agents from the Mississippi Bureau of Narcotics (MBN) were in Marion County, Mississippi, conducting a drug buy/bust operation. The target of the operation was “Teddy,” who allegedly was selling drugs out of a small, locally owned convenience store located on Highway 13 South. The MBN agents used a wired, confidential informant to make contact with Teddy to buy some marijuana using marked “buy” money.
When the informant arrived at the store to purchase drugs from Teddy, Teddy called a man named Walter to bring the marijuana to the store. Walter arrived with the drugs shortly thereafter, and Teddy sold the drugs to the informant. The informant then left the store with the marijuana. After Walter drove away with half of the marked buy money, one of the MBN teams left the scene to arrest him.
When the other MBN agents went to the store to arrest Teddy, they saw a car parked under the store’s awning between the gas pumps and the front door of the convenience store. The car had not been at the station when Teddy had sold the drugs to the informant just a few minutes prior. The agents also saw an unknown individual, later identified as Arvin Johnson, near the car, talking to Teddy.
To secure the scene, the agents handcuffed Johnson and Teddy and had them lie face down on the ground. Johnson was not under arrest at the time. The agents conducted a pat-down search of both men, but found no incriminating evidence or weapons. After conducting a search of the nearby vehicle, the agents discovered a white, rock-like substance, later confirmed to be .7 gram of cocaine, above the car’s driver-side visor.
Johnson was convicted of possession of cocaine and sentenced to 16 years. MCOA affirmed. Johnson argued he was not in constructive possession of the drug. MSC agreed with Johnson and reversed.
We said in Berry v. State, 652 So. 2d 745 (Miss. 1995), that possession of a controlled substance may be actual or constructive.
In Curry v. State, 249 So. 2d 414 (Miss. 1971), we stated that, in order to establish constructive possession, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
In Hudson, we said that constructive possession may be shown by establishing that the drug involved was subject to the defendant’s dominion or control.
A. Other cases where constructive possession was not found
In Fultz v. State, 573 So. 2d 689 (Miss. 1990), the defendant was pulled over for suspicious driving and was the only occupant of the car. The police later discovered that the car actually belonged to the defendant’s sister. After the defendant was arrested, the police conducted an inventory search and found marijuana in the trunk of the car. Not only did the defendant have marijuana on him at the time, but at the time of the arrest, he also admitted to having smoked marijuana. We ultimately held that the State had failed to present sufficient evidence to establish constructive possession. In reversing Fultz’s conviction, we focused on the police’s lack of effort to investigate further.
We cannot help but wonder why the police department failed to dust the trunk for fingerprints or for that matter the bags themselves. Also why didn’t they try to determine if the defendant owned the duffel bag or any of the other items in the trunk. This could have bolstered their case considerably. It also would have been helpful to question the owner of the car. In light of this poor police work, and the absence of any evidence connecting the defendant with the trunk or any of its contents, we have no choice but to reverse this conviction and discharge the defendant.
In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), we held the State had failed to prove constructive possession of drugs found in a matchbox next to the driver seat of the defendant’s car. The defendant did not own the vehicle, but had been in possession of the vehicle for 15 hours. We reversed Ferrell’s conviction because there were no additional incriminating circumstances. No drug paraphernalia was found in the car, Ferrell was not on drugs at the time he was arrested, and his fingerprints were not found on the matchbox. We cited Fultz to support its reasoning, stating that:
The contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. The mere fact that the matchbox was only a matter of inches from where the defendant was sitting, rather than in the trunk, does not overcome the fact that the crack was cloaked.
B. This case
It is undisputed that the car in which the cocaine was found was not at the gas station at the time the informant bought the marijuana from Teddy. Neither was Johnson at the gas station at the time of the drug exchange. In fact, no one ever saw Johnson in the car or driving the car. Both the vehicle and Johnson arrived at the gas station within the short time between the drug exchange and the MBN agents’ arrival.
The State solely used Agent Jonathan Harless’s testimony to establish Johnson’s connection to the cocaine in the vehicle. When asked if the vehicle was registered in Johnson’s name, Harless testified that it was not. Harless’s testimony also revealed that no legal documents indicated Johnson was the owner of the car. Further, Harless could not recall exactly who the car belonged to or who actually picked up the car from the scene. When asked about the ownership of the car, he stated, “I believe going from memory, and I could be incorrect, I believe the owner was Mr. Johnson’s mother.” He also stated that he was unsure whether Johnson’s father or another family member took custody of the vehicle.
In addition to proving Johnson had dominion and control over the car, the State also is required to show additional incriminating circumstances. Specifically, the State must prove that Johnson was intentionally and consciously in possession of the cocaine.
Even if Johnson had been driving the car, like the defendant in Fultz, the white plastic bag that contained the cocaine was above the sun visor, which was in the upright position. The police did not find Johnson’s fingerprints on the bag containing the cocaine. In fact, the police did not even check the bag for fingerprints. When the agents performed a pat-down on Johnson, they found no incriminating evidence or weapons.
As in Ferrell, the cocaine found in the vehicle near Johnson would not have been apparent to a person riding in the car. It was found in a white plastic bag above the driver-seat sun visor in the upright position. Agent Harless admitted he was not sure whether Johnson had ever handled the bag. Also, it was never determined whether Johnson had been in the car at any time. Therefore, the State presented no incriminating circumstances to support the inference that Johnson constructively possessed the cocaine found in the nearby vehicle.
Additionally, MCOA mistakenly used Johnson’s relationship with Teddy to support its finding that the State had presented sufficient evidence for a finding of constructive possession. Mere presence does not indicate participation in the purchase. Nor does it support an inference of dominion and control. MCOA’s reliance on Johnson’s relationship with Teddy is a prime example of a person being held guilty by association. Association will not suffice to satisfy the requirements for constructive possession.
Johnson’s location near the vehicle, absent additional incriminating circumstances, is not sufficient to sustain his conviction of constructive possession.