Opinion
No. C0-02-1769.
Filed May 20, 2003.
Appeal from the Clay County District Court, File No. K302337.
Mike Hatch, Attorney General, and Lisa N. Borgen, Clay County Attorney, Brian J. Melton, Assistant County Attorney, and Kenneth J. Kohler, (for appellant)
John M. Stuart, State Public Defender, Mary M. McMahon, McMahon Associates Criminal Defense, Ltd., (for respondent)
Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant State of Minnesota argues that the trial court erred in determining that the officer lacked probable cause to arrest respondent. Because we conclude that the officer lacked probable cause under State v. Albino, 384 N.W.2d 525 (Minn.App. 1986), we affirm.
FACTS
On February 26, 2002, Officer Brad Stuvland observed a vehicle that had no license plate and appeared to have no drive-out sticker. Officer Stuvland initiated a traffic stop and identified the driver as S.H., a juvenile. The officer told S.H. that he initiated the stop because he saw no license plate.
At some point S.H. showed Officer Stuvland a drive-out sticker that was taped in the lower-left corner of the windshield.
S.H.'s window was rolled down, and Officer Stuvland noticed a strong odor of marijuana coming from inside the vehicle. After Officer Stuvland indicated that he smelled marijuana, S.H. gave him consent to search the vehicle. S.H. was already out of the vehicle when he consented to the search. The officer then ordered both the front-seat passenger, David Chapa, and the back-seat passenger, respondent Abel Reyes, to get out of the car. Reyes emptied his pockets and submitted to a pat-down search, but no contraband was found on his person. All three individuals denied knowledge of any drugs in the vehicle.
Officer Stuvland made a preliminary inspection of the car. In the area of the driver's seat, he noticed a glass pipe typically used to smoke methamphetamine. Officer Stuvland then allowed his trained dog to enter the vehicle to conduct a search. The dog alerted the officer to the ashtray under the dashboard and to the area underneath and between the front seats. The front seat was designed as a divided "bench" style, without a center console. Although the two sides of the front seat were contiguous, it was possible to reach down between them. The ashtray contained two burned marijuana-appearing cigarettes. In the area underneath and between the two front seats, the officer found a baggie containing several other baggies of white powder. A field test of the cigarettes and baggies later produced positive results for marijuana and methamphetamine, respectively. The dog did not alert in the rear seat, but Officer Stuvland testified that "[i]t's a small car, so [respondent] easily could have reached up there [to the front]."
The two passengers were taken to the Clay County Jail, and S.H. was taken to the Detention Center. At the jail, Detective Chuck Anderson and Detective Toby Krone spoke with Reyes. After being given his Miranda rights, Reyes admitted that the drugs found in the vehicle belonged to him and that he had been cutting up the methamphetamine in order to sell it.
In an amended complaint, Reyes was charged with (1) controlled-substance crime in the first degree, sale in violation of Minn. Stat. § 152.021, subd. 1(1) (2000); (2) controlled-substance crime in the second degree, possession in violation of Minn. Stat. § 152.022, subd. 2(1) (2000); (3) controlled-substance crime in the third degree, sale in violation of Minn. Stat. § 152.023, subd. 1(1) (2000); (4) possession or sale of small amounts of marijuana in violation of Minn. Stat. § 152.027, subd. 4 (2000); and (5) possession of drug paraphernalia prohibited in violation of Minn. Stat. § 152.092 (2000). Reyes filed a motion to suppress the evidence and to dismiss, which the trial court granted.
The trial court concluded that Officer Stuvland had been justified under the law in stopping S.H.'s vehicle, in expanding the search without a warrant in order to investigate the odor of marijuana emanating from the vehicle, and in detaining all three individuals during that investigation. But the trial court also concluded that
[t]he Defendant's mere presence in a vehicle where the drugs are located did not constitute probable cause to believe that he was in constructive possession of the drugs.
As a result, the court ruled that the statement made by Reyes at the jail "must be suppressed as fruits of an illegal arrest." The trial court determined that the charges should be dismissed because, without Reyes's statement, the state lacked probable cause.
DECISION
A reviewing court will reverse a pretrial decision of the trial court suppressing evidence only if the prosecution demonstrates
clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.
State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (quotation omitted). "[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error." State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).
Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state's case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.
State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987). Here, suppression has critical impact because the trial court's ruling resulted in dismissal of the complaint against Reyes.
We next consider whether the trial court erred in its judgment. An appellate court "independently reviews the facts to determine the reasonableness of the conduct of police," in determining whether the officer had probable cause to make a warrantless arrest. State v. Vereb, 643 N.W.2d 342, 346 (Minn.App. 2002) (quotation omitted). An officer may make a warrantless arrest pursuant to Minn. Stat. § 629.34, subd. 1(c)(3) (2000), "when a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested to have committed it." Reasonable or probable cause exists where "a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed." State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quotation omitted). "While probable cause requires something more than a mere suspicion [of criminal activity], it requires less than the evidence necessary for conviction." Vereb, 643 N.W.2d at 348 (quotation omitted).
Because Officer Stuvland arrested Reyes for possession of a controlled substance that was found in the vehicle, the state must prove that Reyes consciously possessed the illegal substance, either physically or constructively, and that he had actual knowledge of the nature of the illegal substance. See State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (stating that "the state must prove that defendant consciously possessed, either physically or constructively, the substance and that defendant had actual knowledge of the nature of the substance.").
The purpose of the constructive-possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest.
Id. at 104-05, 226 N.W.2d at 610. Here, because the drugs were not found on Reyes's person and Reyes was not the driver, this court must consider whether the officer had probable cause to believe that Reyes, a passenger, constructively possessed the illegal narcotics. See Minn. Stat. § 152.028 (2000) (creating a permissive inference of "knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in the automobile").
In order to prove constructive possession, the prosecution must show
(a) that the police found the substance in a place under defendant's exclusive control to which other people did not normally have access, or (b) that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.
Florine, 303 Minn. at 105, 226 N.W.2d at 611. "Proximity is an important consideration in assessing constructive possession." State v. Smith, 619 N.W.2d 766, 770 (Minn.App. 2000) (citation omitted), review denied (Minn. Jan. 16, 2001). "Moreover, constructive possession need not be exclusive but may be shared." Id. (citing State v. LaBarre, 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972)). Shared possession is not assumed; courts determine whether other evidence creates an inference that each individual exercised dominion and control. See, e.g., State v. Lorenz, 368 N.W.2d 284, 287-88 (Minn. 1985) (stating that generally courts will not convict defendant of possession where drugs are found in common area of apartment shared by two or more people unless evidence directly ties defendant to drugs); State v. Carr, 311 Minn. 161, 163, 249 N.W.2d 443, 444-45 (1976) (holding constructive possession shown where defendant exercised dominion over the drugs by rushing toward drugs when police began search in a shared apartment); State v. Wiley, 295 Minn. 411, 422, 205 N.W.2d 667, 675-76 (1973) (holding that defendant had dominion and control over drugs, singly or with others, where drawer containing marijuana also had items with defendant's name and other evidence indicating that defendant lived on or frequented premises). But mere presence in a stopped car where contraband is found does not justify arrest. State v. Slifka, 256 N.W.2d 90, 90-91 (Minn. 1977) (holding defendant's presence in vehicle did not create probable cause where beer was found between defendant and the driver and marijuana was found in the glove compartment).
Here, the first Florine alternative to establish constructive possession is not applicable because Reyes did not have exclusive control of the vehicle. With respect to the second alternative, the trial court relied on Slifka and State v. Albino, 384 N.W.2d 525 (Minn.App. 1986), and concluded that
[t]he Defendant's mere presence in a vehicle where the drugs are located did not constitute probable cause to believe that he was in constructive possession of the drugs.
The state argues that Albino and this case are distinguishable. In Albino, an officer stopped a vehicle on a technical violation. After identifying the driver and determining that there was a warrant for his arrest, the officer told Albino, the only passenger, that the driver was under arrest and that the truck would be towed. Id. at 526. Albino began to walk home. Id. While inventorying the vehicle, the officer found a brown camera case on the floor against the center of the bench seat that appeared to contain drugs. Id. The officers followed and stopped Albino to ask her about the drugs, but she remained silent. Id. In a later search at the jail, illegal drugs were found in Albino's pocket. Id. She stated that the drugs in her pocket, but not those in the car, belonged to her. Id. The district court found that the officer had probable cause to arrest Albino. Id. at 527.
On appeal, this court reversed, stating that Albino's silence about the drugs and her mere presence in the truck were not a sufficient basis to justify arrest. Id. Because the drugs were in a closed camera case, Albino did not flee the scene, was never observed making any furtive movements or trying to hide the camera case, and never claimed ownership or control of the vehicle, we concluded that the officer lacked probable cause to believe that Albino was in constructive possession of the drugs found in the camera case. Id. at 528. Although Albino was a passenger in the vehicle and had access to the camera case, there was no strong probability (inferable from other evidence) that she consciously exercised dominion and control over the drugs in the case. Id.; see also Florine, 303 Minn. at 105, 226 N.W.2d at 611 (defining test for constructive possession). Because the officer lacked probable cause to arrest Albino, we determined that the trial court should have suppressed the drugs as the fruit of an illegal search. Albino, 384 N.W.2d at 528.
Here, there is no evidence that Reyes was consciously exercising dominion and control over the drugs found in the front of the car. Although the drugs were arguably accessible to Reyes, they were found in the front of the car. Reyes was in the back seat, and there was no evidence directly linking Reyes to the drugs. The officer testified that it was dark outside so he could not see whether or not Reyes leaned forward or otherwise tried to exercise control over the drugs. While law enforcement officers may be in a difficult position when all occupants in a car deny knowledge or ownership of contraband, the Albino court made it clear that mere presence in a vehicle with no other evidence of constructive possession is not a sufficient basis for an arrest. Albino, 384 N.W.2d at 527. Moreover, the statutorily-created inference that the driver of a vehicle has knowing possession of contraband found in the car generally gives law enforcement the opportunity to move forward in an investigation by questioning the driver. See Minn. Stat. § 152.028 (2000) (creating a permissive inference of "knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in the automobile").
The state also argues that the odor of marijuana, suggesting its recent use, and the pipe and two marijuana cigarettes demonstrate shared possession by all three inhabitants of the car. Although constructive possession need not be exclusive, there was no evidence creating a strong probability that Reyes, in the backseat, was in constructive possession of the drugs. While proximity may be an important consideration in assessing constructive possession, the location of the drugs in this case weighs against Reyes's constructive possession. Because the drugs were in the front of the car, Reyes did not flee the scene, was never observed making any furtive movements or trying to hide drugs, and never claimed ownership or control of the vehicle, Reyes's mere presence in the car is insufficient to provide probable cause to believe that Reyes was in constructive possession of the drugs found in the car.