SCHWELB, Associate Judge:
Baltazar Rivas and Jose M. Melgar were convicted by a jury of possession of cocaine with intent to distribute it (PWID), in violation of D.C. Code § 33-541 (a) (1998). On appeal, they challenge a number of rulings by the trial judge. Perceiving no reversible error, we affirm.
On February 11, 1996, at approximately 1:00 a.m., officers of the United States Secret Service observed a car which was stopped in the middle of a two-lane street and blocking traffic. Melgar was in the driver's seat, while Rivas was the front seat passenger. Two other men were in the rear seat.
After the car moved to the side of the road, the officers issued a citation to Melgar. While doing so, they observed an open, forty-ounce container of alcohol inside the vehicle. [n. 1] When one of the officers leaned into the car to retrieve the open container, he observed two clear sandwich bags in the front console, between the emergency brake and the passenger seat. One of the bags contained twelve rocks of crack cocaine; the other bag contained six rocks. Officers also recovered $ 236 in cash from Melgar's person. Both defendants were arrested and ultimately convicted of PWID. [n. 2]
Rivas claims that the evidence was insufficient as a matter of law to show that he constructively possessed the cocaine. He therefore contends that the trial judge erred in denying his motion for judgment of acquittal. Although Rivas' position is not implausible in principle, it is foreclosed by binding precedent in this court.
In order to establish constructive possession, the prosecution was required to prove that Rivas knew of the location of the cocaine and that he had both the power and the intention to exercise dominion or control over it. See, e.g., In re M.I.W., 667 A.2d 573, 575 (D.C. 1995); Bernard v. United States, 575 A.2d 1191, 1195 (D.C. 1990). Viewing the evidence in the light most favorable to the prosecution, see M.I.W., supra, 667 A.2d at 575, an impartial jury could rationally find, beyond a reasonable doubt, that Rivas knew of the location of the cocaine. See, e.g., Kenhan v. United States, 263 A.2d 253, 254 (D.C. 1970); Hamilton v. United States, 395 A.2d 24, 28-29 (D.C. 1978). [n. 5]
FARRELL, Associate Judge, concurring:
For the reasons Judge Schwelb states, I agree that our prior decisions
allowed the jury fairly to conclude that appellants, including Rivas, had
constructive possession of the drugs. Those decisions treat the combined
facts of presence in a car (as distinct from a room, a plane, or a train)
and immediate proximity to contraband in plain view as enough to prove
shared possession, if unexplained to the jury's satisfaction. I do not
pretend that this proposition is unarguable. Perhaps, especially in today's
culture, the fact that a passenger has taken no steps to distance himself
from drugs visibly meant for sale lying inches from him in a car driven
by a friend says nothing, or too little, about whether he personally has
"some stake in [the drugs], some power over them." United States v.
Pardo, 204 U.S. App. D.C. 263, 277, 636 F.2d 535, 549 (1980).
Maybe, too, the unlikelihood that someone openly transporting drugs for
sale would pick up an innocent friend or stranger, People v. Leyva,
38 N.Y.2d 160, 341 N.E.2d 546, 550, 379 N.Y.S.2d 30 (N.Y. 1975), is not
enough to prove -- beyond a reasonable doubt -- that the passenger has
a "substantial voice vis-a-vis the drugs." United States v. Staten,
189 U.S. App. D.C. 100, 106, 581 F.2d 878, 884 (1978). But, as Judge Schwelb
points out, the fact that at least one legislature has found these facts
sufficient to create a rebuttable presumption of shared possession, which
the Supreme Court in turn has sustained, County Court of Ulster County,
N.Y. v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979),
provides substantial support for the reasonableness of letting a jury draw
that inference as well when offered no other explanation for the defendant's
knowing presence. Indeed, in Ulster County, after rejecting the
respondent-defendants' argument that they could not have shared possession
because the prohibited guns were in a co-defendant's pocketbook (rather
than on the console equidistant between driver and passenger, as in our
case), the Supreme Court analyzed the case in terms relevant here:
The case is tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile. In such a case, it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons.
38 N.Y.2d at 164-65. Judge Ruiz's suggestion, post, that by allowing this inference without a statutory presumption we usurp the legislature's role is strained: the legislature has not defined "possession," much less "constructive" possession, but instead has incorporated the common law definition of those terms developed by the courts.
What suffices for constructive possession has long bedeviled judges
and, no doubt, juries. See, e.g., United States v. Holland, 144
U.S. App. D.C. 225, 227, 445 F.2d 701, 703 (1971) (Tamm, J. concurring)
("The more cases one reads on constructive possession the deeper is he
plunged into a thicket of subjectivity."). The rule of our cases that we
apply here, like the statutory inference upheld in Ulster County,
is an effort to objectify the standard as well as provide clear notice
that the defense "they weren't on me, so they weren't mine" does
not work in the narrow confines of an automobile, a prime facilitator of
drug trafficking. Before discarding that rule, we should be sure we are
not leaving in its place the haphazard regime of decisionmaking Judge Tamm
decried in which defense attorneys and prosecutors "present their cases
with unfortunate knowledge that the law of constructive possession is what
we will say it is in our next opinion." Id. at 227, 445 F.2d at
RUIZ, Associate Judge, concurring:
I am constrained to agree that the evidence was sufficient to convict Rivas, the front-seat passenger, of the offense of possession with intent to distribute, based on a theory of constructive possession. I reach that conclusion reluctantly, because the only evidence upon which the government relied to implicate Rivas is that he had been seated in the front passenger seat next to a center console upon which the police discovered two ziplock bags of cocaine while Rivas was outside of the car speaking to an acquaintance on the sidewalk several feet away from the car. There was no evidence presented on the length of time that Rivas had been in the car or whether Rivas was engaged in an ongoing drug venture with Melgar, the driver, or with the two passengers in the backseat. The fact that the drugs were close enough to Rivas to have been in his plain view and accessible to him is sufficient to establish the first two elements of constructive possession- knowledge of the drugs and the ability to exercise control over them. See Brown v. United States, 546 A.2d 390, 394-95 (D.C. 1988). Language in our cases unequivocally states that the same evidence of proximity of contraband in plain view also is sufficient to establish the third element necessary to a showing of constructive possession-that Rivas in some way controlled or had the intent to exercise control over the drugs. See Bernard v. United States, 575 A.2d 1191, 1195 (D.C. 1990) (citing Brown, supra, 546 A.2d at 394 n.2) (explaining that to establish constructive possession, the government must prove that the appellant "knowingly had both the power and the intention at a given time to exercise dominion or control"); In re T.M., 577 A.2d 1149, 1151 (D.C. 1990) (same).
Although we have, as the majority notes, said that intent to exercise dominion and control "may be inferred from the presence of contraband in an automobile, in plain view, conveniently accessible to the defendant," see Burnette v. United States, 600 A.2d 1082, 1083 (D.C. 1991) (per curiam), I question whether that statement either makes sense or is supported by a close reading of our cases. First, the cases in which we have concluded that the evidence is sufficient to establish constructive possession have had additional facts supporting that the defendant had the requisite intent. See Parker v. United States, 601 A.2d 45 (D.C. 1991) (concluding evidence sufficient for constructive possession where evidence showed that "narcotics-laden" bag rested in plain view on front seat of car equidistant from appellants and appellants were involved in ongoing criminal activity); In re F.T.J., 578 A.2d 1161 (D.C. 1990) (per curiam) (concluding evidence sufficient to establish constructive possession of gun, where appellant had been in car 15-20 minutes, there were three guns and three occupants in car, appellant had motive to possess gun and manner in which gun protruded from under seat suggested it had been placed there from where appellant was seated); Tucker v. United States, 421 A.2d 32 (D.C. 1980) (per curiam) (concluding evidence sufficient to support constructive possession where pistol protruded from under armrest in front seat next to where appellant had been sitting and appellant was seen in possession of the gun three days before arrest); Holley v. United States, 286 A.2d 222 (D.C. 1972) (concluding evidence sufficient for constructive possession where gun was found on rear seat of car, only partially covered by a coat and within appellant's reach from right front seat, and, when asked to leave vehicle, appellant lunged for coat). But see Hamilton v. United States, 395 A.2d 24 (D.C. 1978) (concluding evidence sufficient to support finding of constructive possession where gun was found wedged between passenger seat and door and appellant had been sitting in passenger seat when vehicle was stopped); Kenhan v. United States, 263 A.2d 253 (D.C. 1970) (concluding evidence sufficient for constructive possession where butt of gun stuck out from between backrest and passenger seat to the left of where appellant had been sitting when the vehicle was stopped); Waterstaat v. United States, 252 A.2d 507 (D.C. 1969) (concluding evidence sufficient to support constructive possession where gun was found on front seat between appellant driver and passenger).
A review of our cases therefore shows that the holdings in Bernard and In re T.M., that intent to exercise dominion and control is a necessary element of constructive possession, is supported by most of our cases; but that the statements in Burnette and In re F.T.J., that the requisite element of intent may be satisfied by proof of presence of contraband in plain view in proximity to the defendant, appear to go beyond the facts of our decided cases on the issue, including the facts in Burnette and In re F.T.J. themselves. Thus, the cases that comprise our jurisprudence in this area suggest that the evidence in this case was less than we have deemed sufficient in the past for constructive possession.
There is serious doubt about the merits of permitting an inference-
sufficient without more- of an individual's intent to exercise dominion
and control over contraband from the sole facts of that contraband's presence
in plain view and accessibility to an individual. The starting point must
be the reason for the intent requirement. Here, unfortunately, our cases
do not shed much light. Traditionally, constructive possession had been
defined as: a) knowledge of the presence of contraband; and b) the ability
to exercise dominion and control over the contraband. See Brown, supra,
546 A.2d at 394; Tucker, supra, 421 A.2d at 35 ("To prove constructive
possession, evidence must be adduced establishing that the [contraband]
was conveniently accessible to appellant and that he knew of its presence.")
(citations omitted). In 1990, the Bernard and In re T.M.
cases firmly established the intent element of the constructive possession
test as part of our jurisprudence; [n. 4] however, neither case dealt with
contraband located in a vehicle. [n. 5] In In re T.M., this court
recognized the distinction, stating "this is not a case such as Brown,
supra, 546 A.2d at 396-97, or Waterstaat , supra, 252
A.2d at 509, in which it was held that the requisite inferences may be
drawn from the location of weapons in plain view and substantially within
a defendant's reach in the closer confines of an automobile." 577 A.2d
at 1154 n.12. In Brown and Waterstaat, however, it is clear
that the "requisite inferences" referred to were the traditional elements
of knowledge and accessibility, rather than intent. See Brown, supra,
546 A.2d at 396 (holding that evidence of proximity is sufficient to permit
jury to infer convenient access); Waterstaat, supra, 252
A.2d at 509 (inferring knowledge from fact that gun was in plain view and
accessibility from trial court's determination that gun was in close proximity
to appellant). Nonetheless, in In re F.T.J., supra, the first
case involving a vehicle following our explicit requirement of the intent
prong in Bernard, this court extended the "requisite inferences"
analysis to include intent. See 578 A.2d at 1162-63 ("by 'requisite
inferences' we meant not only access and knowledge but the intent
to exercise dominion or control") (emphasis added); see also Speight
v. United States, 599 A.2d 794, 796 (D.C. 1991) (citing In re T.M.,
supra, 577 A.2d at 1151 n.5) (noting that to prove constructive
possession, the government must show: "(1) that appellant knew of the location
of the drugs; (2) that he had the ability to exercise dominion and control
over them; and, (3) that he intended to guide their destiny"). While intent
may have been an underlying element in the line of cases culminating in
Bernard, [n. 6] the In re F.T.J. court applied the "requisite
inferences" language to the recently recognized intent prong largely without
discussion, based, apparently, on consideration of the "closer confines
of an automobile." [n. 7]
5 The Bernard case dealt with drugs found outdoors, while In re T.M. addressed guns located in an apartment.
6 See Brown, supra, 546 A.2d at 394 n.2 (referring to trial court's jury instruction describing constructive possession as "knowingly having both the power and the intention at a given time to exercise dominion and control over a thing") (emphasis added); In re T.M., supra, 577 A.2d at 1151 n.5 (recognizing that, traditionally, our case law has not explicitly specified that intent to guide the destiny of contraband is an element of constructive possession, but suggesting that the point may be explicit in certain decisions and noting the explicit intent requirement in the District of Columbia jury instruction on constructive possession).
7 I have been unable to find another jurisdiction that, absent a statutory presumption, permits an inference of intent solely from plain view and proximity. See, e.g., Hishaw v. Oklahoma, 568 P.2d 643, 644-45 (Okla. Crim. App. 1977) (finding evidence insufficient to prove possession where drugs were in plain view on floor of car near appellant's feet, and noting that "mere presence of the defendant in even such a confined area as an automobile interior in which illicit drugs are found does not, standing alone, constitute sufficient proof of his possession of such drugs").
With respect to the reasonableness of the inference, the first and obvious point is that we all know from personal experience that it is not necessarily so. Whenever we stand or sit in a bus, train, car or airplane, for example, we are of necessity in close proximity to the belongings of others and have an opportunity to see them and have ready access to them. We could, presumably, reach over to the seat next to ours, under the seat or into overhead bins and racks. That knowledge and proximity, however, do not mean that we intend to exercise control over our neighbor's belongings- not even if we continue to have knowledge of those belongings and to be in such close proximity to them during a long flight or train trip. Should the fact that the instant situation involves the passenger of a car make a difference? We have recognized that the "close confines" of a car may allow certain inferences. In re F.T.J., supra, 578 A.2d at 1162. Trains and planes also are confined spaces, however, and, if we were to limit the rule to cars, what about the passenger of a taxi who finds contraband on the seat left by the former passenger? Is this a special rule for private vehicles? And if so, what is it about such vehicles that makes the inference a realistic one? Or does the inference follow from a presumed relationship among the occupants of a vehicle that may apply in certain situations (e.g., where the passengers have a prior relationship) but not to others (e.g., hitchhiker)? See County Court of Ulster County v. Allen, 442 U.S. 140, 163, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979) (holding that fact that respondents were not "'hitchhikers or other casual passengers'" supported inference of gun possession).
In evaluating inferences, we must be conscious of a second point, that
an inference, to be permissible, may not be based on another inference,
or else the jury's verdict risks coming too close to being speculative,
not evidence-based. In cases inferring intent from knowledge and proximity,
however, inferences upon inferences are rife. In Burnette, supra, 600
A.2d at 1084, we permitted an inference that the appellant knew about,
and had the ability to exercise dominion and control over, a weapon that
he could feel where it lay at his feet under the floor mat, but refused
to extend to that "plain feel" situation the inference of intent to exercise
dominion and control that we had permitted in "plain view" cases. The opinion
does not rely on the premise that an inference based on the sense of sight
is more reliable than one based on the sense of touch, and it is difficult
to see how such a hierarchy of sensory impressions could be justified in
the abstract. For example, the aroma of marijuana is as good as, if not
a better, indicator of the presence of the drug than its green weed-like
appearance. See Minnick v. United States, 607 A.2d 519, 525 &
n.10 (D.C. 1992) (holding that smell of marijuana alone is sufficient to
establish probable cause to search vehicle). One possible reason for the
Burnette court's rejection of a "plain feel" predicate for an inference
of intent might be the view that such a conclusion would require an inference
based upon an inference. In Burnette we recognized that "the jury
could properly infer that appellant must have placed his feet on the mat,
felt a large hard object, lifted up the mat, and seen the gun." 600 A.2d
at 1083. Burnette held that this sufficed to establish the first
two prongs of constructive possession: knowledge of the location of the
gun and ability to exercise dominion and control over it. See id. The
court was "unwilling," however, to accept the "additional inference that
he intended to exercise dominion over the gun - 'to guide [its] destiny.'"
600 A.2d at 1084 (quoting In re T.M., supra, 577 A.2d at 1151 n.5).
The court did not explain its unwillingness. If the rationale was that
the "plain feel" case involved one too many inferences, it is difficult
to see how an inference of intent from "plain feel" is all that more speculative
than the inference of knowledge and ability to control, permitted in Burnette,
which were drawn from three cumulative inferences: an inference
that appellant saw the gun drawn from an inference that he must have lifted
the mat drawn from an inference that he must have placed his feet on the
mat and felt the bulge. Perhaps the court felt that the "intent" requirement
has a subjective component that should not be based exclusively on objective
factors. However, that reluctance would apply with equal force to an inference
of intent in plain view cases. The more likely reason, therefore, is that
the court's unwillingness in Burnette to extend the inference of
intent to "plain feel" cases was due to the view that the "plain view"
situation had already been decisively determined by the court, but that
the rationale "should not be extended beyond [that] situation." 600 A.2d
at 1084. In other words, the court refused to slip down the slope and engaged
in classic line-drawing, albeit without explaining why the line was being
drawn at that particular point. I agree with Burnette that it is
prudent to restrict the inferences that may be drawn from other inferences,
lest the jury be engaged in a possible - yet totally imagined - construct
of the incident.
A third and, for me, decisive, reason for questioning the wisdom of inferring intent to possess from plain view and proximity of contraband is that by sanctioning such an inference in the course of an adjudication, we risk judicially altering the nature of the offense created by the legislature. If close proximity in a car to contraband in plain view is sufficient to permit an inference that conclusively establishes constructive possession, we are effectively imposing, as a matter of judicial interpretation, an obligation on an innocent passenger who discovers such contraband to take affirmative steps to disembark or in some other (at this point undefined) way, distance herself or himself from the offending substance. The statutory offense, however, is possession of a scheduled substance, not contiguous presence with a scheduled substance or failure to disassociate from such a substance. And how, realistically, is a passenger in a car to do so? By its very nature, a car is a confined space engaged in movement, which makes immediate distancing impractical and, possibly, even perilous. There is nothing in the language of D.C. Code § 33-541 (a) (1) to imply that the legislature intended to impose such a duty on pain of conviction of possession. There are statutes that create a presumption that passengers in a car are deemed to possess contraband in the car, see Allen, supra, 442 U.S. at 142 n.1 (citing N.Y. PENAL LAW § 265.15 (3) (McKinney 1967)), but our statute does not contain such a presumption. [n. 9] The dictionary meaning of "possess" implies a certain active dominion or control, "to have and hold as property . . . be master of . . . to take into one's possession: seize or gain control of: make one's own". WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1770 (1986). It exceeds the judicial function to stray from the commonly-understood meaning of "possession" in defining "constructive possession" which, as we have recognized, is "a proxy for actual possession, e.g., in one's hand, pocket or lap." Burnette, supra, 600 A.2d at 1084. The inferences we sanction, as a judicially-created proxy, should not overtake the meaning that the legislature intended.
Turning to the case at hand, apart from the inference of intent from
plain view and proximity, there was no evidence presented at trial that
supported the conclusion that Rivas was connected to the drugs. The drugs
were found by the police, who had been searching the car with a flashlight
during a traffic stop that revealed an open container of alcohol leaning
against the center of the back seat. Upon further investigation, the officers
discovered two ziplock bags at about knee-level on the front console between
the driver's and the passenger's seats, about one inch closer to the passenger's
seat. Following arrest, the officers discovered no drugs or money on Rivas.
The police found $ 236 on Melgar, the driver, who testified that he had
earned the money at his job. Before the car was stopped by the police,
Rivas had left the car to speak to an individual on the sidewalk, leaving
the front passenger side door open. The government claims that it did not
rely solely on the inference of intent from proximity to the drugs in plain
view, but also on Rivas' "odd" and "elusive" behavior that suggested consciousness
of guilt. According to the government, by leaving the car door open, Rivas
indicated that he intended to return to the car, but did not do so and,
instead, began to walk away when the police stopped the car. We have rejected
that argument, however, in considering whether, other than by the inference,
the government has presented evidence linking the accused to an ongoing
criminal operation sufficient to supply evidence of the requisite intent.
In Burnette we did not permit an inference of consciousness of guilt
where the defendant "did not attempt to elude the police by driving away
. . ., there was no evidence of previous suspicious behavior on which the
police were acting at the time they pulled over the car, . . . there was
no evidence about any of appellant's activities earlier that night, . .
. and there is no evidence that the [drugs] in the front seat was in appellant's
plain view either earlier in the evening or at the time the police pulled
over the jeep." 600 A.2d at 1084. All of those elements of proof are also
missing in this case. As in Burnette, there was no evidence here
of the relationship between appellant and the driver. Moreover, in this
case, even though Rivas had begin to walk away when the police stopped
the car, Rivas returned to the car when the police called to him. In this
regard, this case is like In re M.I.W., 667 A.2d 573, 576 (D.C.
1995), where we concluded that there was insufficient evidence to establish
consciousness of guilt because we look for more than "walking away," id.
at 577, which may indicate merely an innocent desire to avoid contact with
the police. See id. (citing Smith v. United States, 558 A.2d
312, 316 (D.C. 1989) (en banc)). As in M.I.W., moreover, here "there
is no evidence that [Rivas] had been in the car for a substantial period
of time before it [was stopped], or that the vehicle had a functional interior
light" that might have made it possible to see the drugs at night, at least
when the car door was opened. 667 A.2d at 577. The testimony in this case,
as in In re M.I.W., is that the police had to use a flashlight when
they searched the car. In this case, in addition, the police testified
that their search was aided by the dome light of their police car. Of course,
the police car's dome light was turned on after Rivas had exited
the car to talk to someone on the sidewalk. As in M.I.W., here there
was no evidence connecting Rivas to the car other than his being a passenger
in it at the time, no evidence connecting Rivas to drug distribution and
no evidence of drugs or money on his person, in contrast to the $ 236 found
on Melgar, the driver.
Therefore, but for the categorical language in Burnette and In re F.T.J. that proximity to drugs in plain view permitted the jury to infer intent, I would conclude that the evidence was insufficient to prove Rivas' intent to possess the drugs in question. However, as I am bound to follow these cases, I concur in affirming Rivas' conviction.