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Subject in constructive possession of $20,000 worth of crack found near him

Facts

Willie Edward Williams was driving his car in Meridian while drinking gin, when he ran off the road and crashed into two parked cars. Williams asked the owners of the two cars, Katrina Dove and Trudie Stubbs, not to call the police. However, Ms. Dove ignored Williams’s request and immediately began to call the police, and as she did so, she saw Williams go back into his car, reach under a speaker box, and retrieve an unidentified object into his pocket. He also retrieved his cell phone, then fled on foot before the police arrived.

Meridian Police Officer Michael Phillips and Detective Andy Havard arrived at the accident. After Ms. Dove and Ms. Stubbs gave the officers a description of Williams, Phillips proceeded in the direction that Williams fled and spotted him approximately two and a half blocks away. Williams stopped when he saw Phillips’ car, and Phillips got out to question Williams about the accident.

As they talked, Phillips noticed that Williams was making a lot of eye movement towards a particular area four or five feet away. Phillips called the police dispatcher for a patrol unit. When Officer Powell of the Meridian Police arrived, the two officers placed Williams in the back seat of Powell’s vehicle.

The officers searched the area to which their attention had been drawn by Williams’s eye movements and found a large ball of aluminum foil. Inside the foil was a substance that appeared to be crack cocaine. They found a “cookie” of crack cocaine, about 89.42 grams, with a value of approximately $20,000 when broken off and sold on the street. Williams also had $4,383.06 in cash in his possession. The officers went back to the scene of the accident with Williams, and Ms. Dove and Ms. Stubbs identified Williams as the driver of the car that crashed into their vehicles.

Officer Phillips called Ricky Roberts, a K-9 officer with the Meridian Police Department, to let his dog sniff Williams’s car. Williams was not near his car at the time. The dog alerted strongly to the speaker box.

Williams was convicted of possession of cocaine with the intent to distribute and sentenced to life as a habitual offender. On appeal, he argued he was not in possession of the drugs. MCOA affirmed.

Analysis

A. Possession

An item is within one’s constructive possession when it is subject to his dominion or control. Constructive possession may be established by direct evidence or circumstantial evidence.

In Powell v. State, 355 So.2d 1378 (Miss.1978), the MSC explained:

The correct rule in this jurisdiction is 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. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.

Williams submits that he did not have the dominion or control of the crack cocaine because he did not have exclusive possession of the property upon which the narcotics was found. When the police stopped Williams, he was on a city street, and the aluminum foil that contained the crack cocaine was likewise on the ground of a city street. Williams submits that no one could be in exclusive control of a city street.

As Powell demonstrates, however, it is not necessary to prove that the premises were in the exclusive possession of the defendant in order to convict under a constructive possession theory. In this case, the State has demonstrated that the arrest occurred early in the morning, when few people would be present on a public street, and the length of time between Williams fleeing the scene of the accident and the police locating the aluminum foil was very short, with little opportunity for anyone to alter the contents of the aluminum foil that had been located. This closeness in time and proximity is an important factor in concluding that Williams was aware of the nature and character of the drugs and exercised dominion and control over the drugs.

The State submits that the following circumstances, all of which the jury considered, show that Williams had constructive possession of the crack cocaine. First, the two women saw Williams go back into his car and retrieve something. Second, Williams fled the scene. Third, the cocaine was within four to five feet of where Officer Phillips saw Williams. Fourth, Williams made eye movements toward the area where the drugs were found. Fifth, Williams had an immediate need to get rid of the cocaine before he got caught with it in his pocket. Sixth, Williams had more than $4,000 in his pocket. Seventh, the drug dog alerted to the area of Williams’s car where he was seen removing something a short while earlier.

We find it especially important to emphasize that two eyewitnesses saw Williams go into his car and retrieve something. This fact shows to us that there was evidence that Williams exercised dominion and control over the drugs. While no single factor standing alone establishes that Williams had constructive possession of the cocaine, the evidence produced by the State, taken as a whole, is sufficient to support the jury’s guilty verdict.

B. Search

In Shook v. State, 552 So.2d 841 (Miss.1989), the MSC said that generally one does not reasonably expect to keep private that which can be seen by the public. In Shook, the court upheld a search around the exterior of the defendant’s truck.

On this precedent, certainly there is no expectation of privacy on a public street. Also pertinent in this case is the principle of abandonment. By discarding the aluminum foil package, before the police took him into custody, Williams abandoned it and deprived himself of any right to privacy.

 

https://courts.ms.gov/Images/Opinions/CO20819.pdf