Opinion
No. CR08-245046
April 30, 2010
MEMORANDUM OF DECISION
The referenced revocation of probation hearing was held on April 5, 2010. At the conclusion of the evidentiary hearing, the court requested the parties submit memoranda in support of their positions. The court has received and reviewed the parties memoranda.
The court makes the following findings of fact. On October 20, 2009, the defendant, Omar Rodriguez, was a passenger in a motor vehicle being operated by Carlos Velez. Officer Eric Simonson of the Meriden Police department conducted a motor vehicle stop after the vehicle failed to obey a traffic signal at the intersection of Liberty and Broad Street in Meriden. Officer Fonda arrived at the scene to assist Officer Simonson. Officer Fonda proceeded to the passenger side of the vehicle and observed the defendant during the motor vehicle stop with an illuminated flashlight. The defendant, Omar Rodriguez, was seated in the front passenger seat. Officer Fonda testified that he observed the defendant reach with his right hand down toward his pocket. Upon seeing the defendant's hand move down toward his pocket, Officer Fonda ordered the defendant to exit the vehicle. At that time, Officer Fonda observed a clear plastic sandwich bag containing a green leafy substance he suspected to be marijuana located directly beside the area the defendant was seated, in between the seat and door of the vehicle. This area between the seat and the door is the area that Officer Fonda observed the defendant move his hand towards. A subsequent search revealed an additional bag of suspected marijuana located beneath the passenger seat in which the defendant was seated. Officer Fonda testified that the defendant made no incriminating statements, did not attempt to flee and complied with his directives upon being removed from the motor vehicle. Officer Fonda searched the defendant and found no drug contraband on his person. The suspected marijuana was subsequently field tested and tested positive for the presence of marijuana. The defendant was arrested for Possession of a Controlled Substance, Marijuana, in violation of Connecticut General Statute § 21a-279(c) and Possession of Narcotics, in violation of Connecticut General Statutes § 21a-279(a).
II DISCUSSION
The state argues the defendant had constructive possession of the marijuana that was located between the front passenger seat and the door. The defendant argues he was not in exclusive possession of the car and it may not be inferred that he knew of the presence of the marijuana.
"A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made . . . The state must establish a violation of probation by a fair preponderance of the evidence. That is to say, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation . . . If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served . . ." (Citations omitted; internal quotation marks omitted.) State v. Fermaint, 91 Conn.App. 650, 654, 881 A.2d 539, cert. denied, 276 Conn. 922, 888 A.2d 90 (2005).
"In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence . . . To prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it . . . Where, as here, the [narcotics were] not found on the defendant's person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference . . . To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses . . . it is essential that the state's evidence include more than just a temporal and spatial nexus between the defendant and the contraband . . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact] is entitled to consider the fact of [the defendant's] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime." Id., 654-56.
The defendant points to State v. Fermaint, supra, 91 Conn.App. 653, and State v. Pender, 51 Conn.Sup. 114, 976 A.2d 99 (2008), for the proposition that constructive possession is not present where the defendant is not in exclusive possession of the premises where the controlled substance is found, did not make any incriminating statements and did not attempt to flee. The present case is distinguishable from the cases cited by the defendant, however, where the defendant's furtive movement here was in such close proximity to the location of the controlled substance.
In the present case, the facts demonstrate that the defendant was in constructive possession of a controlled substance by a preponderance of the evidence. Although the defendant was not in exclusive possession of the motor vehicle, the circumstances involved in the motor vehicle stop make it reasonable to believe that the defendant was aware of the presence of the controlled substance and had control over it. The defendant was seated next to the bag of marijuana located in between the seat and the door of the motor vehicle. Importantly, the defendant made a furtive movement down to his pocket, and that movement was in close physical proximity to the location of the bag of marijuana. The relation of that furtive movement to the specific location of the controlled substance creates the reasonable inference that the defendant had knowledge of the presence of the bag of marijuana in between the seat and door and that he had control thereof. Accordingly, the evidence induces in this court a reasonable belief that it is more probable than not that the defendant has violated a condition of his probation.
III CONCLUSION
For the above stated reasons, the court finds the defendant to have been in violation of the conditions of his probation as a result of his possession of a controlled substance and possession of narcotics. The defendant is in violation of the terms of his probation in that he violated the following conditions: "Do not violate any criminal law of the United States, this State or any other state or territory." The second stage of the revocation hearing will be heard on May 17, 2010 at 2:00 p.m. in Courtroom Four.