Facts
In 2007, Vincent Carnell Hudson was riding in the passenger seat of a car driven by his brother, Hillute Hudson. Officer Patrick Estes of the Louisville Police Department pulled it over for speeding. Just after the stop, Estes noticed what he called extreme and unnecessary movement by Vincent. When he approached the vehicle, Estes learned Hillute’s identity when he asked for his driver’s license.
Prior to the traffic stop and as Estes was conversing with Hillute, Vincent was drinking beer and eating chicken. Estes returned to his patrol car and ran a background check on Hillute, by which he learned that Hillute had a suspended license. Hillute also had an outstanding warrant issued by the Philadelphia, Mississippi, Police Department for contempt of court.
While he was writing the citations, Estes saw Vincent looking backward toward the patrol car and reaching toward the back seat of the car. As a precaution, Estes called Lieutenant Andy Taylor to the scene and approached the vehicle again.
Estes arrested Hillute for driving with a suspended license and pursuant to the outstanding warrant. Estes patted down Hillute and found marijuana in a cigarette package on his person. Hillute was handcuffed and secured in the back of the patrol car. Then, Estes returned to the vehicle, where he arrested Vincent for having the open container of beer in violation of a local ordinance.
Vincent was patted down, checked, handcuffed, and placed in the back of the patrol car as well. Both Estes and Taylor searched Vincent, but neither officer found any controlled substances on Vincent’s person or in his clothes during these pat-down searches. Estes and Taylor then searched the vehicle and found some marijuana in the ashtray. They also found a bag on the back seat of the car near the area Estes had seen Vincent reaching. The bag contained cocaine, ecstasy, and marijuana.
Hudson brothers were transported to the Winston County jail for questioning. Vincent stated during questioning that he did not know anything about the drugs in the car. Agent Barry McWhirter, MBN, testified that, during questioning, Vincent appeared to have been impaired. When McWhirter asked Vincent about his impairment, Vincent stated that he had been working around paint thinner earlier that day while painting a vehicle.
At some point thereafter, the clothes Vincent had been wearing at the time of his arrest were seized by jail officials. McWhirter was not present at the time Vincent’s clothes were seized. The day after the arrest, McWhirter collected Vincent’s clothes from the jail. The following day, McWhirter personally transported the clothes, along with the bag of drugs found on the back seat of the car, to the Mississippi Crime Laboratory.
McWhirter testified that he had seized Vincent’s clothes and had asked the crime lab to check the pockets of the pants and shirt in case there had been anything in the pocket of evidentiary value that they could find that would be related to our case. The Mississippi Crime Laboratory tested Vincent’s clothing and later reported that “trace” amounts of cocaine were found in them. Vincent was charged with one count of felony possession of the cocaine in his clothes and one count, each, of felony possession of the cocaine, ecstacy, and marijuana found in the bag on the back seat of the car.
The jury found Vincent Hudson not guilty of all three counts of possession of the drugs in the bag on the back seat of the car, but returned a guilty verdict with respect to the felony charge of possession of the “trace” amount of cocaine found in his clothes. He was sentenced to life as a habitual offender. MSC reversed.
Analysis
Vincent was charged and convicted under Mississippi Code Section 41-29- 139(c)(1)(A), which makes it a crime to possess less than one-tenth (0.10) gram of a controlled substance. Miss. Code Ann. § 41-29-139(c)(1)(A) (Rev. 2009).
We said in Berry v. State, 652 So. 2d 745 (Miss. 1995), that possession of a controlled substance may be actual or constructive.
In Dixon, we explained 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 to a specific rule. However, 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. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
Here, it is undisputed that the “trace” amount of cocaine which Vincent was convicted of possessing was in the pockets of the clothes he was wearing when he was arrested. Hence, at the time of his arrest, Vincent actually physically possessed the cocaine.
The State found it necessary to apply the constructive possession rationale regarding the drugs in the bag found on the back seat of the car, but Vincent was acquitted of those charges. Thus, this appeal does not involve an issue of constructive possession.
However, the State still was required under actual possession to prove that Vincent was aware of the cocaine and intentionally possessed it.
We previously held in Hampton v State, 498 So. 2d 384 (Miss. 1986), that the statute requires no minimum amount, but any identifiable amount, however slight, constitutes a crime. Thus, possession of a mere “trace” amount of illegal drugs is sufficient to support a conviction.
In Hampton, the police officer who pulled over Hampton witnessed him staggering and acting disoriented. The officer patted Hampton down, and in doing so, felt a syringe in Hampton’s coat. Hampton smiled and made a statement that there was nothing in the syringe that the State could use against him because he had already used it all. Hampton was convicted of possession of the “trace” amount of Talwin in the syringe.
Hampton’s conviction and this court’s affirmance of it were based not only on the “trace” amount of Talwin found in the syringe, but also on additional facts evincing his awareness (“knowledge”) of its presence there and his intent to possess it.
Another factually similar case, decided by MCOA is Nance. In that case, Nance was pulled over while driving for failure to dim his headlights. Nance was arrested on an outstanding warrant and transported to jail. As Nance was being booked into jail, a detention officer discovered in Nance’s clothing a corner of a sandwich bag, which was tied up and contained a white powdery substance. Nance stated that the bag was a candy wrapper and directed the officer to throw it away in the trash. However, the officer collected the bag as evidence and sent it to the crime lab for testing, where it was determined that the bag contained cocaine.
Nance’s conviction and MCOA’s affirmance of it were based not only on the fact that the cocaine actually was physically present on his person, but also on additional facts evincing Nance’s ownership of the cocaine, his knowledge of its presence in his pocket, and his intent to possess it. The booking officer actually found the bag, Nance did not disclaim possession of it, and Nance claimed ownership of the small amount of cocaine by instructing the officer to dispose of the bag.
The State did not meet this burden in this case. Although the prosecution did establish that the cocaine was, in fact, physically present in Vincent’s clothes, that is not enough. The State still had to prove that Vincent knew it was there.
The fact that the cocaine could have been seen does not establish that Vincent did, in fact, see it. It is entirely possible that the cocaine found in Vincent’s pockets was visible, but Vincent never saw it or knew it was there. And unlike the defendants in Hampton and Nance, Vincent did not admit to using the drugs or claim ownership of the cocaine.
Thus, the State did not prove beyond a reasonable doubt that Vincent was “aware” of the cocaine’s presence in his pockets, much less that he intentionally and consciously was in possession of it, both required elements of the crime of possession.