Rivas v. United States

734 A.2d 655, 1999 D.C. App. LEXIS 164, 1999 WL 604067

• Court: District of Columbia Court of Appeals
• Decided: August 12, 1999
• Docket: 97-CF-304, 97-CF-416
• Status: Published

Opinions

SCHWELB, Associate J.

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.

I.

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 Mel-gar. While doing so, they observed an open, forty-ounce container of alcohol inside the vehicle.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.²

II.

Both defendants filed pretrial motions to suppress the cocaine which police recovered from the car. The trial judge denied the motions, concluding that the vehicle was properly stopped for a traffic violation, that the open container of alcohol was in plain view, and that the officers properly recovered the cocaine, which was visible to the naked eye.³ The judge held that after the contents of the sandwich bag had tested positive for cocaine, the officers had probable cause to search Melgar, and that the cash recovered from Melgar was therefore lawfully seized.

The appellants now challenge the judge’s ruling, claiming primarily that the stop of the car was “pretextual.” There is ample support for the judge’s finding that Melgar had violated traffic regulations and that the open container was in plain view. There was no evidence that the traffic stop was pretextual;⁴ even if it had been, the officers’ subjective motivation is irrelevant. Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Accordingly, we conclude that the motions to suppress were properly denied.

III.

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 fight 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).⁵

The question whether the prosecution proved Rivas’ intention to guide the destiny of the drugs is more difficult, for there was no evidence as to how long Rivas had been in the vehicle. But “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.” In re F.T.J., 578 A.2d 1161, 1163 (D.C. 1990) (per curiam); see also Burnette v. United States, 600 A.2d 1082, 1083 (D.C. 1991) (per curiam); In re M.I.W., supra, 667 A.2d at 577. We conclude that the evidence against Rivas readily satisfies this standard. See also County Comt of Ulster County v. Allen, 442 U.S. 140, 164-66 & n. 27, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (sustaining legislative presumption that occupants of an automobile are aware of, and culpably involved in, possession of substantial amounts of narcotics which are abandoned or secreted in the vehicle); People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546, 550 (1975) (“[w]e do not believe that persons transporting dealership quantities of contraband are likely to go driving around with innocent friends or that they are likely to pick up strangers”) (citation omitted);⁶ but cf. Commonwealth v. Deagle, 10 Mass.App.Ct. 563, 409 N.E.2d 1347, 1351 (1980) (although rear seat passenger knew that PCP was in the car and that driver was smoking it, court was “of the opinion that some additional evidence beyond that showing mere knowledge is necessary to make out a case that possession of the bag was shared by the defendant”); Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796 (1955).

Given the force of our language in In re F.T.J. — “our decisions ... leave no doubt” — and in light of the authorities that have preceded and followed that decision, we believe that, notwithstanding the inevitable existence of factual distinctions between different cases,⁷ the legal standard articulated in F.T.J. has become “embedded in the warp and woof of our law.” In re A.R., 679 A.2d 470, 475 (D.C.1996). In our view, a division of this court therefore is not free to depart from F.TJ.’s standard. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). The issues raised by Judge Ruiz may, of course, be addressed by the court sitting en banc, should the full court choose to grant a petition for rehearing en banc in this case or in a comparable one.⁸

IV.

Melgar does not challenge the sufficiency of the evidence that he constructively possessed the contraband.⁹ He claims, however, that the prosecution failed to prove beyond a reasonable doubt that he specifically intended to distribute the cocaine.

According to the prosecution’s expert witness, the eighteen rocks of crack cocaine recovered from Melgar’s car weighed 1.92 grams and had a combined street value of approximately $360. A substantial amount of cash was recovered from Melgar. The expert testified that the cocaine was sufficient for 192 “uses.” We conclude that, viewed in the light most favorable to the prosecution, the evidence was sufficient to establish Melgar’s intent to distribute. See, e.g., Shorter v. United States, 506 A.2d 1133, 1135 (D.C.1986); Chambers v. United States, 564 A.2d 26, 31 (D.C.1989); Bernard, supra, 575 A.2d at 1196 n. 7.

Affirmed.

1 . See D.C.Code § 25-128(a) (1996) ("no person shall in the District of Columbia ... possess in an open container any alcoholic beverage in any street ... or in any vehicle in or upon the same”).

2 . At the trial, Melgar testified on his own behalf. He denied knowledge of the drugs, and he claimed that the cash recovered from him represented his wages. Rivas did not take the stand. The rear seat passengers were detained, but they were not prosecuted. Neither rear seat passenger was called as a witness by the prosecution or by either defendant.

3 . One of the officers shone his flashlight into the car, so that the discovety of the cocaine was not inadvertent. Inadvertence, however, is no longer a necessaty condition for application of the “plain view” doctrine. Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

4 . The appellants claim that the officers did not approach the vehicle until after it was no longer blocking the street. Even if we assume this version of the sequence of events to be accurate, it would hardly prove pretextuality.

5 . In both Kenhan and Hamilton, the inference of knowledge was far weaker than in this case, but both defendants’ convictions were affirmed. At the time of these decisions, however, this court had not held, at least explicitly, that to establish constructive possession, the prosecution was required to prove the defendant’s intent to exercise dominion or control over the contraband.

6 . In Leyva, the court was applying New York's statutory presumption. If a legislature may indulge such a presumption, however, it should not be unreasonable for an impartial juty to draw a similar inference.

7 . In F.T.J., there were three occupants of an automobile, and the police recovered a machine gun and two handguns in the vehicle. This arguably permitted the inference that each occupant was associated with one weapon. Nevertheless, the "ratio decidendi," or basis for the decision, is set forth in the language which we have quoted.

8 . In addition to the authorities cited above, there is a good deal of relevant case law in other jurisdictions, as well as scholarly commentary, on the general issue presented by Rivas' appeal. The decisions point in various directions, but we have found no case directly in point. See generally, Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Automobile of which Defendant was not Sole Occupant, 57 A.L.R.3d 1319, 1331-35 (1974 & Supp.1998) (collecting cases); 1 Gerald F. Uelmen & Victor G. Haddox, Drug Abuse And The Law Sourcebook § 6.3, at 6.22-6.26 (1998); F. Lee Bailey & Henry B. Rothblatt, Handling Narcotic And Drug Cases § 59, at 49-50 (1972 & Supp. 1998); cf. Charles H. Whitebread & Ronald Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 U. VA. L. REV. 751, 765-66 (1972) (suggesting “new approach” to constructive possession and arguing, as does Judge Ruiz, that “the doctrine of constructive possession effectively imposes liability for being present at a place where drugs are being used," and that "judicial use of a general possession statute to assert the broader liability usurps the legislature’s proper function”).

9 . Because Melgar was the owner of the car, see, e.g., In re M.I.W., supra, 667 A.2d at 577, because the jury could reasonably conclude that Melgar gave false exculpatory testimony, see Irick v. United States, 565 A.2d 26, 30 n. 8 (D.C.1989), and because Melgar was carrying a large amount of cash, see authorities cited in text, infra, the evidence of constructive possession against Melgar was stronger than that against Rivas.