Appeal from the Superior Court of the District of Columbia. Conviction was reversed.
Before Wagner, Chief Judge, and Terry, Steadman, Schwelb, Farrell, Ruiz,
Reid, Clickman and Washington, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
June 6, 2000, Argued En Banc
As Corrected March 22, 2002.
Opinion for the court by Associate Judge GLICKMAN. Concurring Opinion by Associate Judge RUIZ. Concurring and dissenting opinion by Associate Judge STEADMAN.
Applying principles of constructive possession, a jury convicted appellant Baltazar Rivas and his co-defendant Jose Melgar of possessing, with intent to distribute, cocaine found in plastic bags that lay between them in the console of a car in which Melgar was the driver and Rivas the front seat passenger. A division of this court affirmed both convictions in Rivas v. United States, 734 A.2d 655 (D.C. 1999) (Rivas I). We granted Rivas's petition for rehearing en banc in order to reconsider a rule followed in Rivas I and other recent cases that appears to ease the government's burden of proving constructive possession when drugs are found in the "close confines" of an automobile, as distinct from, say, a dwelling. The division relied upon this special "automobile" rule in rejecting Rivas's challenge to the sufficiency of the evidence that he intended to exercise dominion or control over the cocaine in Melgar's car, stating that "our decisions leave no doubt that the requisite intent may be inferred from the presence of contraband in an automobile, in plain view, conveniently accessible to the defendant." Id. at 657 (internal quotation marks and citations omitted).
We agree with Rivas that no categorical distinction based on where drugs are found -- and certainly no lessening of the government's burden of proving constructive possession on that basis -- is justified. A defendant's close proximity to drugs in plain view is certainly probative in determining not only whether he knew of the drugs and had the ability to exert control over them, but also whether he had the necessary intent to control (individually or with others) their use or destiny. Nevertheless, we make clear today that there is no "automobile" exception to the settled general rule that knowledge and proximity alone are insufficient to prove constructive possession of drugs beyond a reasonable doubt. A passenger in someone else's car, who is not the driver and who does not have exclusive control over the vehicle or its contents, may not be convicted solely on the basis that drugs were in plain view and conveniently accessible in the passenger compartment. As in all other constructive possession cases, there must be something more in the totality of the circumstances -- a word or deed, a relationship or other probative factor -- that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the passenger intended to exercise dominion or control over the drugs, and was not a mere bystander.
Applying this standard to the government's proof in this case, we also agree with Rivas that the evidence was insufficient to sustain his conviction. As the division itself intimated, the necessary "something more in the totality of the circumstances" beyond proof of proximity and knowledge was missing. Rivas was observed sitting in Melgar's car for only a few moments; "there was no evidence as to how long Rivas had been in the vehicle," Rivas I, 734 A.2d at 657, and there was no other substantial evidence against him. A reasonable trier of fact could not be certain beyond a reasonable doubt that Rivas intended to exert control over those drugs, i.e., that he was not just an innocent bystander. We therefore must reverse Rivas's conviction.
Viewed in the light most favorable to the government,*fn1 the evidence showed that two police officers in uniform, in a marked police cruiser, were patrolling on Hyatt Place, N.W., at around 1:00 a.m. when they saw an automobile stopped in the middle of the street. The officers pulled up behind the car, a two-door Honda occupied by the driver (Melgar, who was also the registered owner of the vehicle), a front seat passenger (Rivas), and two rear seat passengers. Seconds later the passenger-side door opened and Rivas stepped out; leaving the door open, he walked to the sidewalk where he engaged another man in conversation. Soon afterwards the Honda pulled over to the curb. The police officers activated their overhead emergency lights and moved in behind the parked car. As they did so, Rivas, who evidently saw the officers approach, left the man he was speaking with and walked a short distance around the corner onto Park Road. There he remained to talk with someone else, out of sight of the police until he was apprehended a few minutes later.
In the meantime, as the officers approached the car on foot, Officer Mitchell looked in on the passenger side and saw an open container of alcohol on the rear floorboard. The occupants were ordered out of the car, and as Mitchell reached in to retrieve the container, he saw two plastic bags containing a visible white rock substance in the console between the two front seats. Mitchell, who could see the bags because a streetlight illuminated the interior of the car, told his partner to secure the other occupants while he went looking for Rivas. He found him in the midst of conversation some twenty to thirty feet from the corner of Hyatt Place and Park Road.
The plastic bags taken from the console of the car were later determined to contain twelve and six rocks of crack cocaine, respectively, weighing in the aggregate 1,951 milligrams. This was enough, according to a police expert, to furnish 195 separate "hits" or uses of the cocaine. The expert opined, hypothetically, that if the eighteen rocks weighed the same they would sell individually for about twenty dollars on the street; in other words, that the cocaine had a total street value of a few hundred dollars. In the expert's opinion, the amount and configuration of the drugs (in small rocks) were inconsistent with possession for personal consumption.
There was no evidence to show how long Rivas had been in Melgar's car when the police arrived on the scene, or what he or anyone else in the car had been doing. No evidence was presented that Rivas's fingerprints were found on the bags of cocaine seized from the car, or that Rivas had ever handled the bags or engaged in a drug transaction. No incriminating evidence was taken from Rivas's person, *fn2 and he said nothing to inculpate himself.
To prove constructive possession, the prosecution was required to show that Rivas knew that the cocaine was present in the car and that he had both the ability and the intent 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). *fn3 Constructive possession may be sole or joint, see Parker v. United States, 601 A.2d 45, 51-52 (D.C. 1991), and may be proven by direct or circumstantial evidence. See Brown v. United States, 546 A.2d 390, 397-98 (D.C. 1988).
No one disputes that the jury permissibly could find that Rivas knew the cocaine was in the console (given that it was in plain view), and that he had the ability to exercise dominion and control over it (given his proximity to it). *fn4 The question before us is whether the jury rationally could find beyond a reasonable doubt that Rivas intended to exercise that power, in other words that he in fact "had a substantial voice vis-a-vis the drug[s]." United States v. Staten, 189 U.S. App. D.C. 100, 106, 581 F.2d 878, 884 (1978). In general, the settled rule in constructive possession cases is that "mere presence of the accused on the premises, or simply his proximity to the drug, does not itself enable . . . a deduction" beyond a reasonable doubt that he had the requisite intent. Id., 189 U.S. App. D.C. at 106, 581 F.2d at 884 (footnote omitted); accord, Bernard, 575 A.2d at 1195. "Nor is mere association with another, standing alone, enough even when the other is known to possess the drug." Id. (footnote omitted). Rather, there must be something more in the totality of the circumstances that -- together with proximity and knowledge -- establishes that the accused meant to exercise dominion or control over the narcotics:There must be some action, some word, or some conduct that links the individual to the narcotics and indicates that he had some stake in them, some power over them. There must be something to prove that the individual was not merely an incidental bystander. It may be foolish to stand by when others are acting illegally, or to associate with those who have committed a crime. Such conduct or association, however, without more, does not establish the offenses here charged.United States v. Pardo, 204 U.S. App. D.C. 263, 277, 636 F.2d 535, 549 (1980) (emphasis in the original).
In recent years, decisions of this court have attempted to distill at least one principle from constructive possession cases, which, when compared to one another, can sometimes seem "a thicket of subjectivity." United States v. Holland, 144 U.S. App. D.C. 225, 227, 445 F.2d 701, 703 (1971) (Tamm, J., concurring). Recognizing the normal difference in size between a room in a house or other building and the interior of an automobile, our decisions have stated that "the requisite inferences [of dominion or control] may be drawn from the location of weapons [or other contraband] in plain view and substantially within a defendant's reach in the closer confines of an automobile." In re TM, 577 A.2d 1149, 1154 n.12 (D.C. 1990) (citing cases). In In re F.T J., 578 A.2d 1161, 1163 (D.C. 1990), we declared that "our decisions . . . leave no doubt that the requisite intent may be inferred from the presence of contraband in an automobile, in plain view, conveniently accessible to the defendant" -- a declaration that the division echoed in Rivas I, as mentioned earlier. We have suggested that "it is reasonable to expect the law to require a somewhat higher degree of proof [of intent] where an apartment visitor is alleged to have possessed contraband located somewhere within the large space of an apartment, as opposed to that required for an automobile occupant who knows a pistol [or other contraband] is within easy reach under or behind the seat." Brown, 546 A.2d at 395 n.3.
Rivas criticizes these statements, contending that they amount to an unjustified relaxation of the proof requirements when persons are found near drugs in automobiles. Rivas observes that there is nothing "about the nature of a car, except its limited size, that would necessitate a different standard [of proof] in constructive possession cases." Limited size, however, is of questionable significance in this context. Rivas persuasively argues that physical proximity to drugs in the "close confines" of a car, at least one occupied jointly with other persons, may be less probative of possession than proximity in some larger enclosure because a passenger "is greatly restricted in her ability to distance herself from contraband in plain view. There is simply nowhere to go," especially when the car is in motion. *fn5 Moreover, Rivas points out, "the relationship of a 'visitor' in a car may be far more attenuated than a visitor to a house or apartment":People offer or accept rides from colleagues or acquaintances solely because they are travelling to a common destination. We might pick someone up in bad weather, merely recognizing them as a neighbor. We arrange car pools, and drive people home from parties knowing only that we have friends in common. In all these circumstances, we find ourselves in cars with people whom we might never have occasion to invite into the privacy of our own homes. There is no reason to conclude that a "visitor" in a car, as a general rule, has any greater relationship to its contents than a visitor to a home.
We agree with these reasons why any categorical distinction between cars and other enclosed places in deciding issues of constructive possession is untenable. Whether constructive possession has been proven beyond a reasonable doubt in any given case depends, as the parties before us agree, on a fact-specific inquiry into all of the circumstances. A special exception for automobiles does not stand up to scrutiny. Thus, to the extent that language in our decisions may have implied from the normal size of a passenger compartment that proximity to exposed drugs in a car, without more, is sufficient to prove (beyond a reasonable doubt) the requisite intention to exercise dominion or control, we disavow that language.
Lest our holding be misconstrued, we do not mean to suggest that close proximity to exposed contraband -- whether in a car or in a room -- has no bearing on the issue of control. It plainly does. Nor do we mean to say that inferences of possession may not be drawn more readily from a person's presence in a car with contraband in plain sight, particularly if that presence is more than momentary, than in other circumstances. See United States v. Tirrell, 120 F.3d 670, 676 (7th Cir. 1997) ("In close quarters such as a car, a jury likely would have an easier time concluding that multiple individuals exercised control over a particular weapon."). To acknowledge no such distinction between a car and other surroundings would ignore the judgment and common experience embodied in statutes such as the one considered by the Supreme Court in County Court of Ulster County, New York v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979).
In that case, three adult men and a 16-year-old girl ("Jane Doe") were charged with possessing two loaded handguns found in plain view in an open purse on the front floor or front seat of their car next to Doe after they were stopped for speeding on the New York Thruway. In accordance with a state statute, the jury was instructed that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle. Ulster County, 442 U.S. at 142. *fn6 The three male defendants challenged that statutory presumption on due process grounds, claiming that the evidence supporting its application to them failed to prove beyond a reasonable doubt that they possessed the guns. See id. at 147 & n.5, 166.
The Supreme Court held that the statute established only a permissible inference or presumption, not a mandatory one. This meant that proof of the "evidentiary" or "basic" facts could "constitute prima facie evidence" of "ultimate" or "elemental" facts, but that the inference was not binding on the jury. Ulster County, 442 U.S. at 156-57. Such a permissive inference satisfies due process, the Court explained, as long as the ultimate or elemental facts are "'more likely than not to flow from' [the basic facts]" and "the presumption is not the sole and sufficient basis for a finding of guilt." Id. at 165-66 & n.28, 167. Evaluating the application of the presumption on the facts before it, the Court observed that "the argument against possession by any of the [male defendants] was predicated solely on the fact that the guns were [found] in Jane Doe's pocketbook." But the surrounding circumstances made it "highly improbable" that the handguns were in her sole possession, id. at 163, *fn7 and assuming that the jury rejected that hypothesis,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 [defendants] 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.Id. at 164-65. Moreover, concerning the analogous automobile/narcotics presumption in New York law, the Court quoted the drafters' statement that "we do not believe that persons transporting quantities of contraband are likely to go driving about with innocent friends or that they are likely to pick up strangers." Id. at 165-66 n.27. "Legislative judgments such as this one," the Court said, "deserve respect." Id. at 166 n.27.
As the Supreme Court made clear, New York's statutory presumption of possession from presence in a car with guns could not supplant the requirement of proof beyond a reasonable doubt. The presumption was available to the prosecution "as one not necessarily sufficient part of its proof." Ulster County, 442 U.S. at 166. Thus, Ulster County does not support the proposition that a finding of guilt beyond a reasonable doubt may be based solely on evidence that contraband was found in an automobile in plain view, conveniently accessible to the passenger defendant. Nonetheless, as in the passages that we have quoted in the preceding paragraph of this opinion, the Court unquestionably affirmed the probativeness of such evidence on all of the elements of constructive possession. Indeed, the Court noted, as evincing a reasonable distinction, that while the jury convicted the defendants of possessing the guns exposed in the passenger compartment, it acquitted them of possessing a loaded machine gun and heroin located in the trunk of the car. See id. at 155 n.14, 162 n.23, 166 n.29. The principal factor that explained this difference in outcome was the defendants' proximity to exposed weapons in the passenger compartment, and the rational inferences of knowledge and ability and intent to exercise control which that proximity supported. See id. at 166 n.29.
We need only add that the reasonableness of such inferences holds true even when a legislature has not made them statutory. As Judge Schwelb put it in Rivas I, "if a legislature may indulge such a presumption, ... it should not be unreasonable for an ...