Facts
In 1995, Jose Guerrero was pulled over for a traffic violation. Acting on a tip received from the Smith County Sheriff’s Department via radio dispatch, Officers Doug Hill and Kevin Flynn of the Laurel Police Department set up surveillance near the Laurel city limits. The dispatch advised Hill and Flynn that a white Ford pickup truck with Florida license plates was headed south on Highway 15 to Jones County and that the vehicle had been previously stopped by a Smith County deputy sheriff. The dispatch also advised that the vehicle appeared suspicious and was possibly carrying contraband.
As Guerrero entered the Laurel city limits, Hill and Flynn pulled in behind Guerrero and followed him for approximately two miles, during which time Guerrero broke the center line two to three times. Hill and Flynn stopped the vehicle and asked the driver, Guerrero, for his driver’s license. Guerrero stated that he did not have a driver’s license and produced a Texas identification card which indicated Guerrero was seventeen years of age.
Guerrero was then placed under arrest for driving without a driver’s license. When asked his point of origin and destination, Guerrero responded that he was traveling from Houston, Texas to Florida. Guerrero also stated that the vehicle belonged to his brother and that he had borrowed the truck for the weekend, but that his brother did not know where he was going in the vehicle.
Hill testified that given the fact that Guerrero was traveling the “back roads” instead of the interstate and that Guerrero had few items of clothing with him, a K-Nine unit was called to the scene to conduct a scan of the vehicle for drugs. K-Nine Officer Ken Williams arrived a short time later with his K- Nine partner Bycal, a five-year-old German Shepard. As Officer Williams and Bycal were conducting their scan of the vehicle, Bycal indicated the presence of drugs near the right front wheel area of the vehicle. However, a preliminary search of the vehicle failed to produce any drugs.
A wrecker was called to remove the vehicle from the scene. Officer Roy Watson, the shift commander that night, arrived and examined the vehicle. Watson observed that the vehicle had duel fuel tanks. Further examination by Watson revealed discrepancies in the fuel gauge as the tow truck raised and lowered the vehicle, which indicated to Watson the presence of an obstruction in the fuel tank which was interfering with the fuel gauge reading. The vehicle was towed and impounded in an enclosed building until the following morning.
A subsequent inspection the following morning by Officer Randy Dearman and C.D. Farris, a City of Laurel mechanic, revealed that the bolts securing the bed of the truck showed signs of tampering. Further inspection revealed that an object or objects were in the fuel tanks. Farris and Officer Dearman removed the fuel tanks and discovered several sealed PVC pipes within the fuel tanks. Sealed within the PVC pipes was approximately 55 pounds of marijuana.
Guerrero was convicted of possession of more than a kilogram of marijuana and sentenced to 20 years. On appeal, he argued he was stopped without probable cause and he was not in constructive possession. MCOA affirmed.
Analysis
A. Stop of vehicle
In Whren v. United States, 517 U.S. 806 (1996), the U.S. Supreme Court held that the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
It is readily apparent from the record that as Guerrero was driving through the Laurel city limits, Officers Hill and Flynn observed the truck cross over into the turning lane two to three times over the yellow line before pulling back into his lane each time. Despite the dispatch concerning Guerrero’s previous stop in Smith County and his suspicious nature as implied in the dispatch, Guerrero committed a traffic violation in the presence of Officers Hill and Flynn, thereby justifying their initial stop of Guerrero.
B. Constructive possession
The theory of constructive possession has been explained, in Curry v. State, 249 So. 2d 414 (Miss.1971), as follows:
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 due to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
The theory was further defined in Hamburg v. State, 248 So. 2d 430 (Miss.1971), that one who is the owner in possession of the premises is presumed to be in constructive possession of the articles found in or on the property possessed. This presumption is rebuttable, however, and does not relieve the State of its burden to prove guilt beyond a reasonable doubt. Thus, 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.
Guerrero points to Ferrell v. State, 649 So. 2d 831 (Miss. 1995) and Fultz v. State, 573 So. 2d 689 (Miss. 1990). Ferrell was arrested for speeding and driving with a suspended license. The officer returned to the vehicle Ferrell was operating to retrieve the car keys and discovered a suspicious yellow pill next to two match boxes. A search of the match boxes revealed nine rocks of crack cocaine in one of the boxes.
Ferrell stated that he was unaware of the crack cocaine and that he had only borrowed the car. When contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession. The court in Ferrell rejected the State’s argument that the location of the matchbox next to the driver’s seat and the fifteen hours which Ferrell had possession of the car amounted to additional incriminating circumstances.
In Fultz v. State, 573 So. 2d 689 (Miss. 1990), the MSC similarly reversed a conviction based on constructive possession and held that the evidence was insufficient to establish that Fultz constructively possessed marijuana found in the trunk of the vehicle he was driving. Fultz was stopped for driving erratically and subsequently failed three field sobriety tests. He was arrested and taken into custody. The vehicle was owned by Fultz’s sister. While conducting an inventory search, seven and a half ounces of marijuana were discovered in a duffel bag located in the trunk of the car. Fultz was convicted of possession with intent to distribute.
The court noted that absent additional competent evidence, the only additional incriminating circumstance was that Fultz had a small amount of marijuana on his person at the time of his arrest. The court held that this factor, standing alone, is insufficient to prove any connection between the contraband and this defendant.
We think this case is more like Boches v. State, 506 So. 2d 254 (Miss. 1987). Boches was traveling from Miami, Florida to Memphis, Tennessee in a white Pontiac when he attempted to avoid a roadblock. Officer McDaniel stopped the white Pontiac driven and occupied solely by Boches. During the stop, Officer McDaniel smelled a strong odor of marijuana coming from the vehicle. A subsequent search of the vehicle resulted in the discovery of 348 pounds of marijuana in the trunk of the vehicle.
The State offered the following factors tending to show additional incriminating circumstances and constructive possession:
1. Boches had exclusive possession and control of the automobile (dominion and control);
2. The length of the trip (over 8 hours) and the distance [traveled] (over 1000 miles);
3. Testimony by the officers that they smelled marijuana (denied by Boches);
4. Sensitive steering testified to by Officer Holder (denied by Boches).
Additional incriminating factors were offered into evidence which the prosecution contends supports the jury’s decision:
1. Boches flew to Miami on short notice, immediately drove back and made no stops along the way;
2. Boches’ lack of knowledge as to the owner of the vehicle;
3. Boches’ failure to inquire about where he was going or who owned the vehicle;
4. Boches’ actions after encountering the roadblock.
In our case, Guerrero’s circumstances, while not identical to those in Boches, are similar. They
are listed as follows:
1. Guerrero had exclusive possession and control of the automobile (dominion and control);
2. The length of the trip (over 6 hours) and the distance traveled (over 450 miles);
3. The scarce amount of clothing Guerrero had with him (Guerrero stated he was going to Florida for the weekend);
4. Guerrero’s deviation from the I-10 Interstate system, the quickest route between Houston, Texas and Florida. (Guerrero was using the back roads in rural Mississippi instead of the Interstate);
5. The lack of explanation by Guerrero as to the scarce amount of clothing with him and his route; and
6. Guerrero’s statement that he had filled both tanks up prior to leaving Houston and had just switched to the other tank, despite the fact that both fuel tanks contained numerous sealed PVC containers filled with 55 pounds of marijuana which would have greatly limited the vehicles’s fuel capacity and economy (miles per gallon).