Cray, P. J.
This cause is in this court on appeal from a judgment upon a verdict of a jury finding defendant guilty of illegal possession of narcotics. Defendant, feeling aggrieved by this result of his trial, filed his notice of appeal and assigned the following errors.
“First Assignment op Error: The trial court erred in overruling defendant’s motion to suppress physical evidence and statements given by defendant, and in allowing the introduction of the same at the trial of this cause.
“Second Assignment op Error: The trial court erred in allowing the introduction of the physical evidence of
marijuana into evidence over the objection of the defendant, since the same was tbe product of an illegal search and seizure in violation of defendant’s constitutional rights.
‘
‘ Third Assignment oe Error : The trial court erred in allowing the introduction of defendant’s statement given after a request for counsel had been made both by him and in his behalf.
“Fourth Assignment oe Error : The trial court erred in not directing the jury to return a verdict of not guilty in this case for the failure on the State’s part to show an essential element of the alleged crime, to wit: Guilty knowledge.”
We will consider the first two assignments of error together. We do not believe them to be well taken. Quite frankly, we do not believe that defendant has cited us any law that prevents a search of an automobile that is immediately preceded by a lawful arrest of the operator.
On April 5, 1969, defendant stopped his automobile at the post office at Haver Hill, Scioto County. At that time and place, he was arrested on a valid warrant from Lawrence County, Ohio. The car was searched and, in the process, a suitcase on the back seat of the car was opened. In it were found three packets of marijuana.
A motion to suppress the introduction of this evidence was made before the trial and overruled.
Defendant claims that the search of the car in this instance violated his constitutional rights and cites both federal and state cases to support his position. We know of no case and have not been directed to any, where a search of an automobile as an incident to, a lawful arrest violates any provision of either the state or federal constitution.
In this connection we wish to cite the case of
Adams
v.
United States
(D. C. Cir.), 336 F. 2d 752, 753, wherein the court said: “But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so.”
It has been suggested in the separate concurring opinion that there was no valid search of the automobile as an incident to the arrest. We wish to cite an old United States Supreme Court case,
Carroll
v.
U. S.
(1924), 267 U. S. 132, 45 S. Ct. 280, wherein Chief Justice Taft, speaking for the court, said:
“We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”
This holding has been cited with approval in
Chimel
v.
California
(1969), 395 U. S. 752, 89 S. Ct. 2034.
We wish to comment on another facet of this case. The officer in the present case, however, might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant under the circumstances threatened the destruction of the evidence.
Preston
v.
U.
S., 376 U. S. 364, 367, 11 L. Ed. 2d 777, 780, 84 S. Ct. 881.
Given these special facts, we conclude that the search and seizure of the automobile of defendant and the discovery of contraband material was an appropriate incident of defendant’s arrest.
Schmerber
v.
California,
384 U. S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.
There was a valid search of the automobile of defendant as an incident of his arrest.
This court is of the same philosophy. This being so, we are of the opinion that the first two assignments of error are without merit.
We now address ourselves to the third assignment of error. We are at a loss to understand what prejudice re-
suited to the defendant due to the fact that he carried on a conversation with the officers. It is not every error that becomes a prejudicial error. To put it succinctly, only prejudicial errors count. Nothing has been advanced by defendant to show his right to a fair trial was prejudiced. The mere fact that defendant tried to find his attorney and could not, and talked to the officers in the absence of an attorney, does not in and of itself create prejudicial error. Defendant is the one in error when he claims that the officers conducted an illegal search and it might be that he is contending that if his attorney had been present the search would not have occurred. We can not find where any incriminating evidence was secured from defendant by the officers as a result of this conversation. Since the search of the car was proper, what protection would the presence of an attorney provide? The question answers itself. This assignment of error is overruled.
Defendant now claims in Assignment of Error No. 4, that he did not have guilty knowledge concerning the crime. Neither defendant nor his wife testified on the merits of the case, hence the ownership of the suitcase on the back seat of the car was not developed. However, there have been many cases involving this type of situation.
It is well established that the possession of an item can exist without physical contact so long as a person has dominion and control over it.
United States
v.
Cox
(2d Cir.), 277 F. 2d 302. Such dominion and control without physical custody has been termed “constructive,” as opposed to actual, possession.
Free access — add to your briefcase to read the full text and ask questions with AI
Cray, P. J.
This cause is in this court on appeal from a judgment upon a verdict of a jury finding defendant guilty of illegal possession of narcotics. Defendant, feeling aggrieved by this result of his trial, filed his notice of appeal and assigned the following errors.
“First Assignment op Error: The trial court erred in overruling defendant’s motion to suppress physical evidence and statements given by defendant, and in allowing the introduction of the same at the trial of this cause.
“Second Assignment op Error: The trial court erred in allowing the introduction of the physical evidence of
marijuana into evidence over the objection of the defendant, since the same was tbe product of an illegal search and seizure in violation of defendant’s constitutional rights.
‘
‘ Third Assignment oe Error : The trial court erred in allowing the introduction of defendant’s statement given after a request for counsel had been made both by him and in his behalf.
“Fourth Assignment oe Error : The trial court erred in not directing the jury to return a verdict of not guilty in this case for the failure on the State’s part to show an essential element of the alleged crime, to wit: Guilty knowledge.”
We will consider the first two assignments of error together. We do not believe them to be well taken. Quite frankly, we do not believe that defendant has cited us any law that prevents a search of an automobile that is immediately preceded by a lawful arrest of the operator.
On April 5, 1969, defendant stopped his automobile at the post office at Haver Hill, Scioto County. At that time and place, he was arrested on a valid warrant from Lawrence County, Ohio. The car was searched and, in the process, a suitcase on the back seat of the car was opened. In it were found three packets of marijuana.
A motion to suppress the introduction of this evidence was made before the trial and overruled.
Defendant claims that the search of the car in this instance violated his constitutional rights and cites both federal and state cases to support his position. We know of no case and have not been directed to any, where a search of an automobile as an incident to, a lawful arrest violates any provision of either the state or federal constitution.
In this connection we wish to cite the case of
Adams
v.
United States
(D. C. Cir.), 336 F. 2d 752, 753, wherein the court said: “But as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. We are not persuaded that we should be the first court to do so.”
It has been suggested in the separate concurring opinion that there was no valid search of the automobile as an incident to the arrest. We wish to cite an old United States Supreme Court case,
Carroll
v.
U. S.
(1924), 267 U. S. 132, 45 S. Ct. 280, wherein Chief Justice Taft, speaking for the court, said:
“We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”
This holding has been cited with approval in
Chimel
v.
California
(1969), 395 U. S. 752, 89 S. Ct. 2034.
We wish to comment on another facet of this case. The officer in the present case, however, might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant under the circumstances threatened the destruction of the evidence.
Preston
v.
U.
S., 376 U. S. 364, 367, 11 L. Ed. 2d 777, 780, 84 S. Ct. 881.
Given these special facts, we conclude that the search and seizure of the automobile of defendant and the discovery of contraband material was an appropriate incident of defendant’s arrest.
Schmerber
v.
California,
384 U. S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.
There was a valid search of the automobile of defendant as an incident of his arrest.
This court is of the same philosophy. This being so, we are of the opinion that the first two assignments of error are without merit.
We now address ourselves to the third assignment of error. We are at a loss to understand what prejudice re-
suited to the defendant due to the fact that he carried on a conversation with the officers. It is not every error that becomes a prejudicial error. To put it succinctly, only prejudicial errors count. Nothing has been advanced by defendant to show his right to a fair trial was prejudiced. The mere fact that defendant tried to find his attorney and could not, and talked to the officers in the absence of an attorney, does not in and of itself create prejudicial error. Defendant is the one in error when he claims that the officers conducted an illegal search and it might be that he is contending that if his attorney had been present the search would not have occurred. We can not find where any incriminating evidence was secured from defendant by the officers as a result of this conversation. Since the search of the car was proper, what protection would the presence of an attorney provide? The question answers itself. This assignment of error is overruled.
Defendant now claims in Assignment of Error No. 4, that he did not have guilty knowledge concerning the crime. Neither defendant nor his wife testified on the merits of the case, hence the ownership of the suitcase on the back seat of the car was not developed. However, there have been many cases involving this type of situation.
It is well established that the possession of an item can exist without physical contact so long as a person has dominion and control over it.
United States
v.
Cox
(2d Cir.), 277 F. 2d 302. Such dominion and control without physical custody has been termed “constructive,” as opposed to actual, possession.
The question presented, whether defendant had guilty knowledge or not, is generally not susceptible to direct proof but must be determined through inferences drawn from facts and circumstances attending the act, and one may be presumed to intend the necessary and natural consequences of his acts. Therefore, the intent required to be proven as an element of the crime is inferred from the defendant’s voluntary commission of the act forbidden by law, or from his omission of the duty required by law, and it is not necessary to establish that defendant knew that his act or omission was a violation of the law.
The State of Ohio, which was the prevailing party in this criminal proceeding, was entitled to all of the favorable inferences as might he reasonably drawn from facts proven.
The fact that neither defendant nor his wife testified as to the ownership of the suitcase found in their car does not preclude proof that defendant had knowledge that the suitcase contained three packets of marijuana and that it is illegal to possess such drug in the State of Ohio.
In recapitulation, the following can he said. There was a lawful arrest of defendant. There was a lawful search of the car driven by defendant. Marijuana was found in a suitcase on the back seat of that car. The suit-ease and the contents were under the control of defendant. There was no claim made by defendant that the suitcase was not his and that it was not under his control. The record does not show that he did not know that the suitcase was on the back seat of the car, and he did not know what the contents of the suitcase were.
Therefore, the judgment of the trial court is affirmed.
Judgment affirmed.
Abete, J., concurs.