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Subject did not own residence but found in constructive possession of drugs

Facts

In 2009, the Biloxi Police Department conducted an undercover drug operation at Gregory Hopkins’s residence (residence owned by the mother of Daryl Daniels) located at 224 Bowen Street in Biloxi, Mississippi. The police enlisted the help of a confidential informant (CI) who called Hopkins and requested $50 worth of crack cocaine. Hopkins agreed to the sale.

Officer Ricky Allen and Officer Mike Mason drove the CI to Hopkins’s residence, searched her, wired her purse with audio surveillance equipment, and gave her $50 in prerecorded bills to complete the buy. Police officers stationed around the property watched the CI approach Hopkins’s residence and lost sight of her only when she approached his door.

After ten minutes, the CI returned with two purses, no money, and one rock of crack cocaine, which she handed directly to the investigator. The audio surveillance equipment recorded the entire transaction and revealed that Hopkins would not let the CI into his residence but brought her a second purse and the crack cocaine. Once the rock tested positive for crack cocaine, the investigator signaled to secure the house.

Upon entering the house, the police found Hopkins and a woman named Hope Black in the bathroom trying to stuff a crack pipe down the sink drain after flushing something down the toilet. A third person, Darryl Daniels, was found in the yard and brought inside.

After securing the house, Sergeant Aldon Helmert prepared a search warrant requesting permission to search the house for crack cocaine, confidential funds, drug paraphernalia, and anything listed in Exhibit A of the warrant. Once the judge granted the warrant, the police began a search of the house.

In addition to the crack pipe found while securing the house, the police found: money, paperwork, and sandwich bags in the master bedroom; crack cocaine in the living room; crack cocaine and a digital scale in the kitchen; and $500 in Hopkins’s pocket, fifty of which was from the CI. Each of these items was recorded on the search warrant.

The money found in the bedroom totaled $3,604 in cash and $38.56 in change. The money was found wrapped in a hat and concealed under other clothing in the bedroom dresser. Also in the bedroom dresser was a bank card with Hopkins’s name on it and a car title certificate. The title had been issued to Hopkins three months before the undercover operation occurred and listed 224 Bowen Street as his address. The sandwich bags found in the bedroom were identified by an officer at trial, without objection, as the type typically used to package and distribute narcotics.

The rock found in the living room and the substance found in the kitchen were confirmed by a drug analyst with the Mississippi Crime Laboratory to be crack cocaine. The rock weighed .1 gram but the substance in the kitchen was only a trace amount, as it was in powder form and lacked weight. Additionally, the digital scale found in the kitchen was identified by an officer as the type of scale typically used to weigh out individual crack cocaine rocks.

Hopkins was convicted of possession of cocaine with intent to distribute and sentenced to 12 years. On appeal, he argued he was not in possession of cocaine. MSC affirmed.

Analysis

We said in Knight the following regarding possession:

Possession of a controlled substance may be actual or constructive. Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband. The defendant’s proximity to the drugs is a factor in establishing constructive possession, but it is not determinative.

Other incriminating circumstances must be present to establish constructive possession. This court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.

Hopkins argues that he could not constructively possess the house or any of its contents because he did not own the house, and other people visited the house occasionally. This argument lacks merit. There is both physical evidence as well as testimonial evidence that he had control over 224 Bowen Street.

The police found a bank card with his name on it and a car title issued to him that listed 224 Bowen Street as his address in the bedroom. In addition, Helmert and Freeman testified that Hopkins’s address in the police database was 224 Bowen Street. Freeman also testified that he had interacted with Hopkins numerous times at that address and that it was clear the house was under Hopkins’s control.

There is sufficient evidence that Hopkins controlled 224 Bowen Street to an extent that he knew or should have known that the crack cocaine was there. This is especially true since the crack cocaine was found in plain view in the living room and in the kitchen. Therefore, the evidence supports a finding that Hopkins had constructive possession of the crack cocaine found at 224 Bowen Street.

 

https://courts.ms.gov/images/Opinions/CO94052.pdf