Aggressive driver unit stopped car because it was going 60 mph and only
approximately 1 car length behind another car, and it
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State,
Respondent,
v.
Gustavo Alvarado,
Appellant.
Appeal From Greenville County
John W. Kittredge, Circuit Court Judge
Unpublished Opinion No. 2005-UP-120
Heard January 11, 2005 Filed February
16, 2005
AFFIRMED
Jeffrey Falkner Wilkes and Richard Harold Warder, both of
Greenville, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot,
Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor
Robert M. Ariail, of Greenville, for Respondent.
PER CURIAM: Gustavo Alvarado appeals his
conviction for trafficking in marijuana. We affirm.
FACTS
On December 13, 2001, Chris Hines, a deputy with
the Greenville County Sheriffs Department, was patrolling Interstate 85 looking
for instances of aggressive driving, such as following too closely, improper
lane changes, and various trucking violations. During the early evening hours,
Hines noticed a 1997 dark maroon Honda Accord tailgating and drifting onto the
lane divider. This observation prompted Hines to follow the car, turn on his
in-car video camera, and call out a traffic stop with his dispatch.
Hines then stopped the car; however, because of
the heavy traffic on the highway, he went to the passenger side of the car and
requested the occupant in the front passenger seat to open the window. When
the passenger opened the window about four or five inches, Hines immediately
detected an overwhelming odor of air freshener as well as a faint odor of raw
marijuana from inside the vehicle.
Alvarado, who was driving the car, produced a drivers license.
Following standard procedure, Hines further requested the vehicle registration
and insurance information. After Alvarado produced these documents, Hines noticed
the proof of insurance had expired and instructed Alvarado to step to the rear
of the car.
Hines then requested the passenger to look in
the glove box to locate current registration and insurance information on the
car. Hines also asked the passenger his name and relationship to the driver.
The passenger produced identification from a company in Delaware that gave only
his name. He also stated he was just a friend and his date of birth was October
10, 1977.
After calling dispatch to check for warrants on
both Alvarado and his passenger, Hines learned that Spartanburg County had an
active warrant for someone with the same name as the passenger but a date of
birth of September 15, 1981. In addition, the passenger appeared to Hines to
be in his late teens. Hines attempted to verify the passengers age with Alvarado,
and based on what Alvarado told him, determined that the passenger may in fact
be the subject of the warrant. Because of Hines concerns about the smells
emanating from the car and conflicting information from Alvarado about the passenger,
he kept Alvarado and the passenger separated and called for a backup as well
as a narcotics K-9 officer.
Hines testified he gave Alvarado warning tickets
for following too closely and the lane change violation. He further testified
that he asked Alvarado if there was marijuana in the car and Alvarado hung his
head and answered there was not. In contrast, when Hines inquired about cocaine
in the car, Alvarado raised his head and denied it. When Hines asked a second
time about marijuana, Alvarado denied it, but again hung his head and avoided
eye contact. In addition, Alvarado refused to allow a search of the car, even
after Hines explained to him that as the driver, he had authority to consent.
When the backup officers arrived, the
passenger finally gave a correct date of birth matching what was on the warrant.
In addition, Deputy Teddy Hampton with the K-9 unit testified that contrary
to the usual practice, his K-9 dog abruptly pulled him to the rear of the vehicle
and scratched the bumper to indicate it had found something.
[1]
Upon opening the trunk, Hines found
a U-Haul box. When he pulled back one part of the lid of the box, he discovered
marijuana wrapped in brown packing tape. Officers then placed Alvarado under
arrest.
In addition to the U-haul box, officers
recovered a large garbage-style black plastic bag also contained marijuana.
Inside this bag was a white trash bag with marijuana and several other smaller
bags or bundles of marijuana. During a search of the interior compartments
of the car, officers found a set of scales used to weigh small items and a green
pipe with a drawing of a skull on it. In addition, Hampton, who searched Alvarado
incident to his arrest, found a wad of cash on Alvarados person, which, Alvarado
said, was around $700 but actually turned out to be more than that amount.
The Greenville County grand jury indicted
Alvarado for the offense of trafficking in marijuana. Following a jury trial
in November 2002, Alvarado was found guilty as charged and sentenced to serve
eighteen years and fined $15,000. This appeal followed.
DISCUSSION
1. Alvarado argues the
trial court should have suppressed the drugs because the traffic stop was pretextual
and the stop and resulting search were therefore unlawful. We disagree.
In an appeal from a motion
to suppress evidence based on Fourth Amendment grounds, an appellate court may
conduct its own review of the record to determine whether the evidence supports
the circuit courts decision. [2] Nevertheless, in reviewing such
a motion on appeal, this court is bound by the circuit courts factual
findings if any evidence supports the findings. [3]
Regarding Alvarados contention
that the stop was pretextual, the trial court found that the stop was reasonable
and supported by probable cause and that Hines conduct was entirely appropriate
under the facts presented in this case. We agree with the State that there
is evidence in the record to support these findings.
[4] Hines testified he observed the Honda Accord only about one car length
behind the vehicle in front of it while traveling at about sixty miles per hour.
He further stated that such a following distance was grossly inadequate under
the standards of the National Traffic Safety Administration.
[5]
We also find no merit to
Alvarados argument that the marijuana should have been suppressed because Hines
did not have a reasonable suspicion to further detain him after giving him traffic
violation warnings.
In support of
his argument that he was unlawfully detained, Alvarado cites State v. Williams
[6] for the proposition that after the stop has been completed, further
detention is improper. In our view, although Williams limits what a
police officer can do after a routine traffic stop, the case expressly allows
further detention for questioning after the stop is completed if the officer
has a reasonable suspicion of a serious crime.
[7]
In this case, Hines stated
he smelled the air freshener and the marijuana before he issued the traffic
warning to Alvarado. He further testified he became concerned that Alvarados
passenger might have been the subject of an outstanding warrant. In addition,
as noted by the trial court, the conflicting stories that Alvarado and his passenger
gave to Hines constituted an additional factor that when considered with the
other suspicious circumstances, would lead to an articulable suspicion of criminal
activity.
2. We disagree with Alvarados contention that
the chain of custody for the marijuana found in the car was not sufficiently
established to admit the drugs into evidence. [8]
The admission of evidence is discretionary with
the trial judge. [9] Proof of chain of custody need
not negate all possibility of tampering but must establish a complete chain
of evidence as far as practicable. [10] [I]f the identity of each person in the
chain handling the evidence is established, and the manner of handling is reasonably
demonstrated, no abuse of discretion is shown in the admission, absent proof
of tampering, bad faith, or ill-motive.
[11] Furthermore, where there is a weak link in the chain of custody,
as opposed to a missing link, the question is only one of credibility and not
admissibility. [12]
In the present case, Hines testified that after
he seized the bags of marijuana, he listed them on the property report and secured
them with evidence tape. Tony Vinskus, the supervisor over the property and
evidence section, testified that narcotics must be submitted to his division
in tamper-proof, sealed packaging. Vinskus also testified that when contraband
is received, trained personnel witness the drop being made and the evidence
remains in a locked dropbox until it is processed into evidence storage. As
to the one individual who handled the evidence before it was analyzed but was
not called as a witness at trial, Vinskus testified about that employees responsibilities
and the procedures she followed in carrying out her duties. We have found no
evidence suggesting this individual did not follow established protocol, and
Alvarado does not direct our attention to anything in the record showing her
work on the case deviated from standard procedure. [13]
3. Finally, we reject Alvarados argument that he
should have received a directed verdict because the evidence was insufficient
to support a finding that he had dominion and control over the marijuana.
Any person who is knowingly in actual
or constructive possession of ten pounds or more of marijuana is guilty of
trafficking in marijuana. [14]
To prove constructive possession, the State must show a defendant had dominion
and control, over the contraband.
[15] Constructive possession can be established by circumstantial as
well as direct evidence, and possession may be shared.
[16] The knowledge element may be proved circumstantially by evidence
of acts, declarations, or conduct of the accused from which an inference may
be drawn that the accused knew of the existence of the prohibited substance. [17] Because actual knowledge of the presence
of the drug is strong evidence of intent to control its disposition or use,
knowledge may be equated with or substituted for the intent element.
[18]
In support of his argument, Alvarado emphasizes
that the vehicle that he was driving belonged to his brother and he had merely
borrowed it to give his cousin, Ricardo Gallegos, a ride. He also notes that
Gallegos testified at trial that Alvarado was unaware of and had nothing to
do with the marijuana seized in the present case, which was found in a closed
container in the trunk of the car.
We, however, hold the record has sufficient
evidence that would support a finding by the jury that Alvarado had at least
the right to exercise dominion and control over the drugs. It is undisputed
that Alvarado was driving the car when it was stopped; therefore, it is reasonable
to infer that he had dominion and control over premises upon which the drugs
were found. [19] And this is not the only evidence that supports
Alvarados conviction. Alvarados behavior during the traffic stop, including
his refusal to make eye contact when asked if he had marijuana and the vague
answers he gave to questions regarding the circumstances of his journey, could
be considered indicative of his participation in criminal activity and of his
awareness that he had been caught with contraband. He also had over $700 in
cash on his person when he was arrested. Moreover, during the trial, Gallegos
admitted to owning only the pipe that was seized from the car, which could support
an inference that the scales belonged to Alvarado. In addition, the excessive
amount of air freshener in the car was susceptible of the inference that the
occupants were attempting to mask the pungent smell of the marijuana, which,
despite this effort, was of such a quantity that it emanated an odor that was
detected almost immediately by both the arresting officer and the K-9 dog.
AFFIRMED.
HEARN, C.J., and GOOLSBY and WILLIAMS,
JJ., concur.
[1] Hampton stated that he usually started the dog from the front of
the car and worked backwards.
[2] State v. Abdullah, 357 S.C. 344, 349-50, 592 S.E.2d 344,
347 (Ct. App.), cert. denied (Nov. 19, 2004).
[3] Id. at 349, 592 S.E.2d at 344 (emphasis added).
[4] See S.C. Code Ann. § 56-5-1930 (1991) (prohibiting driving
more closely than is reasonable); id. § 56-5-1900 (stating rules for
driving on roadways laned for traffic); State v. Butler, 343 S.C. 198,
201, 539 S.E.2d 414, 416 (Ct. App. 2000) ([T]he decision to stop an
automobile is reasonable where the police have probable cause to believe that
a traffic violation has occurred.).
[5] Hines also explained the in-car video that he took did not show
any traffic violations because he turned the tape on only after he saw the
initial violations.
[7] Id. at 598, 571 S.E.2d at 707.
[8] We further agree with the State that any error in the admission
of this evidence was later cured by statements elicited by Alvarado in his
case-in-chief from Ricardo Gallegos, the passenger in the car, that Gallegos
bought a hundred pounds of marijuana and put it in the trunk of the car.
[11] State v. Taylor, 360 S.C. 18, 25, 598 S.E.2d 735, 738 (Ct.
App. 2004).
[13] We further agree with the State that there is no merit to Alvarados
contention that testimony from four additional individuals whose names appeared
on the property report was necessary. According to Vinskus, these individuals
were involved in handling the evidence only after it had been analyzed. See
State v. Singleton, 319 S.C. 312, 317, 460 S.E.2d 573, 576 (1995) (noting
that when offering fungible evidence, the State must trace possession of
the substance and what was done with it from the time it was taken until the
final analysis).
[14] S.C. Code Ann. § 44-53-370(e)(1) (2002 & Supp. 2004).
[15] State v. Hudson, 277 S.C. 200, 202, 284 S.E.2d 773, 774-75
(1981).
[16] Id. at 202, 284 S.E.2d at 775.
[17] State v. Mollison, 319 S.C. 41, 45, 459 S.E.2d 88, 91 (Ct.
App. 1995).
[19] State v. Lane, 271 S.C. 68, 73, 245 S.E.2d 114, 117 (1978)
(quoting State v. Ellis, 263 S.C. 12, 23, 207 S.E.2d 408, 413 (1974));
see also State v. Potts, 464 P.2d 742, 745 (Wash. Ct. App. 1969)
(rejecting the defendants argument that the failure of the prosecution to
prove he was the owner of the car in which marijuana was found was fatal to
the claim that he had constructive possession of the drugs and noting that
the defendant, as the driver and sole occupant of the car, had dominion and
control over the premises), cited in State v. Wise, 272 S.C.
384, 387, 252 S.E.2d 294, 295 (1979).