UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-4822 Summary Calendar __________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATEEN YUSUF SHABAZZ, a/k/a EDWARD L. EBERHART, a/k/a EDWARD WALLACE, and KEITH LAMAR PARKER,
Defendants-Appellants.
______________________________________________
Appeal from the United States District Court for the Eastern District of Texas ______________________________________________ (June 4, 1993) ( )
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants Mateen Yusuf Shabazz (Shabazz) and Keith
Lamar Parker (Parker) were convicted on drug possession charges.
They argue that evidence discovered in a warrantless search of the
car in which they were traveling should have been suppressed, that
the trial court erroneously failed to submit a "mere presence" jury
instruction, and that their convictions rest on insufficient
evidence. We affirm. Facts and Proceedings Below
On July 10, 1991, Shabazz and Parker were traveling in a 1976
Chevrolet Malibu on Interstate 10 in Beaumont, Texas, when they
were pulled over by two officers of the Beaumont Police Department
for exceeding the speed limit. Officer Gerald LaChance approached
Shabazz, who had been driving the car, and asked him to step to the
rear of the vehicle with his driver's license. Shabazz complied
and produced what turned out to be a false driver's license bearing
the name Edward (or Edwin) L. Wallace. Parker remained in the
vehicle. While running a computer check on Shabazz's license, the
officers questioned Shabazz and Parker individually. Comparing
notes, the police officers determined that Shabazz and Parker had
given conflicting answers concerning their recent whereabouts.
Shabazz had said that he and Parker had been visiting Parker's
sister in Houston, where they had been for a week, since the Fourth
of July. Parker, on the other hand, had said that they had only
been in Houston since the eighth, just two days prior to the stop.
Based upon the conflict in their stories, and Officer Froman's
belief that Parker seemed nervous, the officers decided to seek
consent to search the car. Because Parker had represented himself
as the owner of the car, he was asked if he would consent to a
search of the vehicle. Parker gave both written and oral consent
to a search.
During the search, Officer LaChance discovered a Phillips-head
screwdriver on the front floorboard of the driver's side of the
car. He also observed that the screws in the front driver's side
air conditioner vent had shiny nicks on them and appeared to be
2 loose. Using the screwdriver, Officer LaChance loosened the
screws. The vent thereupon fell open and out of it tumbled a
number of plastic baggies, which contained over 300 grams of crack
cocaine and over 100 grams of powder cocaine. Shabazz and Parker
were immediately arrested.
A grand jury returned a two-count indictment against Shabazz
and Parker charging them with possession with intent to distribute
cocaine and possession with intent to distribute a cocaine mixture
and substance containing cocaine base, in violation of 21 U.S.C. §
841(a). A jury trial was held in the Eastern District of Texas and
defendants were convicted on both counts. The court sentenced
Parker to 216 months' imprisonment, to be followed by 5 years of
supervised release, and a $100 special assessment. Shabazz
received a 192 month sentence, 5 years of supervised release, and
a $100 special assessment. Parker and Shabazz now appeal their
convictions.
Discussion
Appellants raise three arguments on appeal. They argue that
the trial court erred by failing to suppress the evidence found in
the search of the automobile, that the court erred by failing to
give the jury a "mere presence" instruction, and that the evidence
was insufficient to prove that they knowingly possessed the
cocaine. We will address these issues in turn.
I. Suppression of Evidence
Prior to trial, appellants1 moved to suppress the evidence
1 The government initially challenged the standing of Shabazz, who was driving the car but made no claim to be its owner, to
3 found in the search of the automobile as the fruits of a Fourth
Amendment violation. Following an evidentiary hearing, the
district court denied the motion. On appeal, we review the
district court's findings of fact for clear error; conclusions of
law are examined de novo. See United States v. Coleman, 969 F.2d
126, 129 (5th Cir. 1992). The evidence is viewed most favorably to
the party prevailing below, except where such a view is
inconsistent with the trial court's findings or is clearly
erroneous considering the evidence as a whole. Id. See also
United States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984).
The Fourth Amendment prohibits unreasonable searches and
seizures. There is no question but that the stopping of a vehicle
and the detention of its occupants is a "seizure" within the
meaning of the Fourth Amendment. See Delaware v. Prouse, 99 S.Ct.
1391, 1396 (1979). It is clear that, as in the case of
pedestrians, searches and seizures of motorists who are merely
suspected of criminal activity are to be analyzed under the
framework established in Terry v. Ohio, 88 S.Ct. 1868 (1968). See
United States v. Sharpe, 105 S.Ct. 1568 (1985) (applying Terry
analysis to stop of vehicles suspected of transporting drugs);
challenge the search as violative of the Fourth Amendment. The district court ruled that Shabazz had the requisite standing. As the government does not raise the issue of standing on appeal, and in light of our affirmance of the district court's denial of the motion to suppress, we do not address the district court's ruling in this respect. Cf. Rakas v. Illinois, 99 S.Ct. 421 (1978) (passengers in a car driven by its owner did not have standing to raise the Fourth Amendment); United States v. Lee, 898 F.2d 1034 (5th Cir. 1990), cert. denied, 113 S.Ct. 1057 (1993) (driver of and passenger in a truck rented by a third party and being operated at third party's behest have standing to raise the Fourth Amendment).
4 United States v. Brignoni-Ponce, 95 S.Ct. 2574 (1975) (applying
Terry analysis to stop of a vehicle suspected of transporting
aliens).2 Of course, in this case appellants were not merely
suspected of illegal behavior, but were actually observed by the
stopping officer committing an offense, a Class C misdemeanor, and
were stopped on that basis. A routine traffic stop is a limited
seizure that closely resembles an investigative detention. See
Berkemer v. McCarty, 104 S.Ct. 3138, 3150 (1984) ("the usual
traffic stop is more analogous to a so-called 'Terry stop' than to
a formal arrest" for Miranda warning purposes). Also, both the
Supreme Court and the Fifth Circuit have used Terry to analyze
cases in which motorists were stopped for violating traffic laws.
See Pennsylvania v. Mimms, 98 S.Ct. 330 (1977) (per curiam) (stop
for expired license plate); United States v. Kelley, 981 F.2d 1464
(5th Cir. 1993), petition for cert. filed, (April 19, 1993) (stop
for seat belt violation); United States v. Lee, 898 F.2d 1034, 1040
(5th Cir. 1990), cert. denied, 113 S.Ct. 1057 (1993) (stop for
speeding).
Under Terry, the judicial inquiry into the reasonableness of
a search or seizure "is a dual oneSQwhether the officer's action
was justified at its inception, and whether it was reasonably
related in scope to the circumstances which justified the
interference in the first place." Terry, 88 S.Ct. at 1879.
2 Some of our cases have termed this practice a "vehicle frisk." See United States v. Hernandez, 901 F.2d 1217, 1220 (5th Cir. 1990); United States v. Basey, 816 F.2d 980, 991 (5th Cir. 1987).
5 A.
Appellants do not argue, nor could they, that the initial stop
of their vehicle for speeding was improper. This is so whether or
not Terry applies. See United States v. Causey, 834 F.2d 1179,
1184 (5th Cir. 1987) (en banc); United States v. Basey, 816 F.2d
980, 990 (5th Cir. 1987).3 Appellants do argue, however, that when
the officers interrogated them about their visit to Houston, the
detention exceeded the reasonable scope of the stop's original
purpose and thus violated Terry's second prong. Appellants rely
principally upon the Tenth Circuit's decision in United States v.
Guzman, 864 F.2d 1512 (10th Cir. 1988). In Guzman, a New Mexico
police officer stopped Guzman, the driver of a rented Cadillac with
Florida plates, and his wife for seat belt violations. Guzman gave
the officer his license, registration, and car rental agreement.
3 Although some courts have held that a lawful traffic stop may nonetheless violate the Fourth Amendment if the stop was merely a pretext to allow officers to search for contraband, see United States v. Smith, 799 F.2d 704, 708 (11th Cir. 1986); United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988), this Court has rejected that position. In Causey, we said that "so long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry." 834 F.2d at 1184. We note too that most circuits agree with Causey. See United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990), cert. denied, 112 S.Ct. 428 (1991); United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989), cert. denied, 112 S.Ct. 428 (1991); United States v. Hawkins, 811 F.2d 210, 212-15 (3d Cir.), cert. denied, 108 S.Ct. 110 (1987); see also United States v. Rusher, 966 F.2d 868, 885-89 (4th Cir.), cert. denied, 113 S.Ct. 351 (1992) (Luttig, J., concurring in part); cf. United States v. French, 974 F.2d 687, 692 n.4 (6th Cir. 1992), cert. denied, 113 S.Ct. 1012 (1993). Even if "pretext" could theoretically render an otherwise lawful stop invalid, the district court found that the stop was "a valid, nonpretext traffic stop for speeding" (emphasis added), and this finding is adequately supported by the evidence and is not clearly erroneous.
6 The officer reviewed the documents and concluded that they were in
order. At this point, rather than issue a warning or a citation,
the officer investigated further by examining the odometer and
extensively questioning the motorists. His suspicions aroused, the
officer asked if the two were carrying contraband. Guzman denied
the allegation and invited the officer to search the car. The
search revealed cocaine concealed in the car, whereupon Guzman and
his wife were arrested. The Guzman court held that the officer's
actions violated the Fourth Amendment:
"An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime." Id. at 1519.
The reasoning of Guzman was apparently applied by this Court in the
similar case of United States v. Kelley, supra. As in Guzman, the
motorists in Kelley were stopped for seat belt violations and,
subsequent to questioning by police officers, were discovered to be
in possession of drugs.4 "We do not disagree with the Tenth
Circuit," said Kelley, "that, under appropriate circumstances,
excessive questioning about matters wholly unrelated to the purpose
of a routine traffic stop may violate the Fourth Amendment." 981
4 Kelley is also strikingly similar to this case. As here, the Kelley motorists were coming from Houston, were stopped on I- 10 in Beaumont, gave conflicting answers, appeared nervous, and eventually consented to a search of the car. Also, the arresting officers in Kelley, as here, were the ever-vigilant LaChance and Froman of the Beaumont Police Department.
7 F.2d at 1470.
The Fourth Amendment injury found in Guzman and assumed
arguendo in Kelley5 was a violation of Terry's second prong: that
the scope of a search must be reasonably related to its initial
justification. See Terry, 88 S.Ct. at 1879; id. at 1878 ("The
scope of the search must be 'strictly tied to and justified by' the
circumstances which rendered its initiation permissible.") (quoting
Warden v. Hayden, 87 S.Ct. 1642, 1652 (1967) (Fortas, J.,
concurring). Appellants argue that Officers LaChance and Froman
violated the second Terry prong by asking them questions about
their stay in Houston. Such interrogation, they maintain, was
wholly unrelated to the initial justification for the stop, that
is, speeding. This argument reflects some confusion about
precisely what constitutes a violation of the "scope" requirement.
At the outset, we reject any notion that a police officer's
questioning, even on a subject unrelated to the purpose of the
stop, is itself a Fourth Amendment violation. To be sure, one can
find suggestive statements to this effect in the case law. See,
e.g., Kelley, 981 F.2d at 1470 ("under appropriate circumstances,
extensive questioning about matters wholly unrelated to the purpose
of a routine traffic stop may violate the Fourth Amendment")
(emphasis added). Mere questioning, however, is neither a search
nor a seizure. See, e.g., Florida v. Bostick, 111 S.Ct. 2382, 2386
5 Kelley did not decide if the Fourth Amendment had been violated because it concluded that defendant's consent to the search cured any violation that might have occurred. Guzman did hold that the Fourth Amendment had been violated but then remanded to determine if the defendants had given a valid consent to the search.
8 (1991) ("Since Terry, we have held repeatedly that mere police
questioning does not constitute a seizure.").6 Rather, Terry's
second prong is concerned with detentions, in other words,
seizures. See Florida v. Royer, 103 S.Ct. 1319, 1325 (1983)
(plurality opinion) ("The scope of the detention must be carefully
tailored to its underlying justification.") (emphasis added). This
is not to say that questioning is unrelated to the determination
that a detention has exceeded its lawful duration. In a garden
variety Terry stop, the nature of the questioning during a later
portion of the detention may indicate that the justification for
the original detention no longer supports its continuation. Thus,
when a police officer reasonably suspects only that someone is
carrying a gun and stops and frisks that person, the officer, after
finding nothing in a pat down, may not thereafter further detain
the person merely to question him about a fraud offense. This is
not because the questioning itself is unlawful, but because at that
point suspicion of weapons possession has evaporated and no longer
justifies further detention. When the officer is satisfied that
the individual is not carrying a gun, the officer may not detain
him longer to investigate a charge lacking reasonable suspicion.
At that point, continuation of the detention is no longer supported
by the facts that justified its initiation. Thus, detention, not
questioning, is the evil at which Terry's second prong is aimed.
Here, appellants cannot successfully claim that the detention
6 See also INS v. Delgado, 104 S.Ct. 1758, 1762-63 (1984); Florida v. Royer, 103 S.Ct. 1319, 1324 (1983)(plurality opinion); id. at 1338 n.3 (Rehnquist, J., dissenting); Terry, 88 S.Ct. at 1886 (White, J., concurring).
9 exceeded its original scope. Appellants concede, and we have no
doubt, that in a valid traffic stop, an officer can request a
driver's license, insurance papers, vehicle registration, run a
computer check thereon, and issue a citation. See Kelley, 981 F.2d
at 1469; Guzman, 864 F.2d at 1519. In this case, Officer LaChance
asked Shabazz to exit the vehicle7 and produce his driver's
license. He then called in for a computer check of the license.
The questioning that took place occurred while the officers were
waiting for the results of the computer check. Therefore, the
questioning did nothing to extend the duration of the initial,
valid seizure. Because the officers were still waiting for the
computer check at the time that they received consent to search the
car, the detention to that point continued to be supported by the
facts that justified its initiation. Cf. United States v. Sharpe,
105 S.Ct. 1568, 1576 (1985) ("Clearly this case does not involve
any delay unnecessary to the legitimate investigation of the law
enforcement officers.").
Support for our conclusion can be found in one of Guzman's
Tenth Circuit progeny, United States v. Walker, 933 F.2d 812 (10th
Cir. 1991), cert. denied, 112 S.Ct. 1168 (1992), another traffic
stop case. Significant for our purposes is the following statement
by the Walker court:
"Under the reasoning of United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990), our determination that the defendant was unlawfully detained might be different if the questioning by the officer did not delay the stop
7 Ordering someone to get out of a car is itself a "seizure," but a constitutionally permissible one when done incident to a lawful traffic stop. See Pennsylvania v. Mimms, supra.
10 beyond the measure of time necessary to issue a citation. For example, this case would be changed significantly if the officer asked the same questions while awaiting the results of an NCIC [National Crime Information Center] license or registration inquiry." Id. at 816 n.2 (emphasis added).8
So too in this case, appellants cannot complain of questioning that
took place during the pendency of a computer check. While
appellants were under no obligation to answer the questions, the
Constitution does not forbid law enforcement officers from asking.
We recognize that a detention may be of excessively long
duration even though the officers have not completed and continue
to pursue investigation of the matters justifying its initiation.
See, e.g., Sharpe, 105 S.Ct. at 1573-74; Cf. Royer, 103 S.Ct. at
1325 (1983) ("an investigative detention must be temporary and last
no longer than is necessary to effectuate the purpose of the
stop"). A prolonged investigative detention may be tantamount to
a de facto arrest, a more intrusive custodial state which must be
based upon probable cause rather than mere reasonable suspicion.
In Sharpe, the Court held that a defendant who was suspected of
transporting drugs in his truck and was held for twenty minutes
pending the arrival of a DEA agent had not been unreasonably
detained:
"While it is clear that 'the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,' we have emphasized the need to consider the
8 Morales-Zamora had held that a canine sniff of defendants' vehicle at a roadblock checkpoint was not an unreasonable detention because agents completed the canine sniff before another agent had finished examining the driver's license and registration.
11 law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." 105 S.Ct. at 1575 (quoting United States v. Place, 103 S.Ct. 2637, 2645 (1983)).
In this case, the law enforcement interest to be served by
running a computer check on the license of someone stopped for a
traffic violation is unquestioned. It is also clear that the time
it took for Officers LaChance and Froman to run the check imposed
no significant Fourth Amendment hardship. Officer LaChance
testified that, depending upon the number of checks being requested
of the lone teletype operator, a computer check can take anywhere
from two to three to ten to fifteen minutes. He also testified
that in this instance only about four minutes elapsed from the time
that the car was stopped to the time Parker gave consent.
The district court found "that the period of detention by the
officers was not beyond the scope of the initial purpose for the
stop, which was speeding" and "this detention did not go beyond
that purpose." He implicitly credited the testimony of the
officers that the questioning and consent to search took place
while the officers were awaiting the results of the computer check
and that this process lasted only about four minutes. These
findings are supported by the evidence and are not clearly
erroneous. Based upon these facts, we cannot say that the period
of appellants' detention was either unreasonably lengthy or
extended beyond the period justified by the valid speeding stop.
B.
We now turn to the issue of the validity of the consent to
search. The standards governing the judicial assessment of the
12 voluntariness of a tendered consent were described in Kelley, 981
F.2d at 1470 as follows:
"'To be valid, consent to search must be free and voluntary.' United States v. Olivier-Becerril, 861 F.2d 424, 425 (5th Cir. 1988). The government has the burden of proving, by a preponderance of the evidence, that the consent was voluntary. United States v. Yeagin, 927 F.2d 798, 800 (5th Cir. 1991). Where consent is preceded by a Fourth Amendment violation, the government has a heavier burden of proving consent. United States v. Ruigomez, 702 F.2d 61, 65 (5th Cir. 1983). The voluntariness of consent is 'a question of fact to be determined from the totality of all the circumstances.' Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). We will not reverse the district court's finding that consent was voluntary unless it is clearly erroneous. Olivier-Becerril, 861 F.2d at 425-26. 'Where the judge bases a finding of consent on the oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong since the judge had the opportunity to observe the demeanor of the witnesses.' United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)."
In evaluating the voluntariness of a consent, this Court has
looked to six factors:
"(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse to consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found." Olivier-Becerril, 861 F.2d at 426 (citations omitted).
Although all six factors are relevant, no single factor is
dispositive. See id.
The district court made specific findings concerning all six
of these factors, expressly recognizing that the government had the
burden to show voluntary consent by a preponderance of the
evidence. As to the first factor, voluntariness of custodial
status, the court found that the defendants "were not free to leave
13 until the officers finished their check of the driver's license or
vehicle tag . . . they were checking on the radio," and that this
"militate[d] against the government." Concerning the defendant's
awareness of his right to refuse consent, the fourth factor, this
also "militate[d] against the government" to the extent that
"Parker apparently was not specifically told by Officer LaChance
that he had a right to refuse to consent"; however, the court also
found in this connection that the officers gave Parker a written
consent form to read, that "[t]he form itself informs Mr. Parker of
his right to refuse consent,"9 that there was no evidence Parker
"didn't read it" and that he was "a high school graduate and
presumably can read." As to each of the remaining four factors,
the court found for the government, finding "there was not the
presence of coercive police procedures here," that "defendants
cooperated fully," that Parker "has a high school education," and
that "Parker believed no incriminating evidence would be found."
While there was conflicting evidence on some of these factors,
there is evidence to adequately support each of the district
court's findings, and the findings are not clearly erroneous.
After making the foregoing findings, the district court ultimately
found "that the consent to search was given voluntarily by Mr.
9 The form, which Parker signed, stated:
"I understand I have the right to refuse consent to the search described above and to refuse to sign this form. I further state no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used against me."
Parker also orally consented to the search.
14 Parker without coercion."
Based on the district court's specific findings as to each of
the six factors, and considering the evidence as a whole, we cannot
say that the district court's ultimate finding, that Parker
voluntarily and without coercion consented to the search, was
clearly erroneous or influenced by an incorrect view of the law.10
Appellants have failed to demonstrate that the district court
erred by denying their motion to suppress.11
10 We have held that the district court did not err in its determination that the detention was valid and did not extend beyond the period justified by the valid speeding stop. Nevertheless, we observe that the district court also found that "even if this detention went beyond that period necessitated by the speeding stop, the consent validated the search." This determination by the district court, while not necessary to its decision or ours, appears to be valid under our holding in Kelley, where we applied "the Brown [v. Illinois, 95 S.Ct. 2254 (1975)] factors" and sustained the district court's determination that the consent, even if given during a period of illegal detention, was voluntary and validated the search. Kelley at 1471-72. In this respect, Kelley is not distinguishable from the present case. Also supporting Kelley's holding in this respect are Walker, 933 F.2d at 817-18; Guzman, 864 F.2d at 1520-21; United States v. Varona-Algos, 819 F.2d 81, 82-83 (5th Cir.), cert. denied, 108 S.Ct. 298 (1987); United States v. Ruigomez, 702 F.2d 61, 65 (5th Cir. 1983); United States v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978). But see United States v. Melendez-Gonzalez, 727 F.2d 407, 413-14 (5th Cir. 1984). 11 Our analysis assumes, arguendo only, that decisions such as United States v. Robinson, 94 S.Ct. 467, 477 (1973); Gustafson v. Florida, 94 S.Ct. 488 (1973); New York v. Belton, 101 S.Ct. 2860 (1981); and United States v. Ross, 102 S.Ct. 2157 (1982), do not apply where, at the time of the alleged Fourth Amendment violation following a lawful stop for a traffic violation, there has not been "a full-custody arrest" but instead merely "'a routine traffic stop' . . . where the officer would simply issue a notice of violation and allow the offender to proceed." Robinson, 94 S.Ct. at 477 n.6. The Supreme Court seems to have expressly left this open. Id. Cf. United States v. Parr, 843 F.2d 1228 (9th Cir. 1988). We need not reach this issue because here the brief continued detention following the lawful traffic stop was valid under Terry and the search was pursuant to valid, voluntary consent.
15 II. The "Mere Presence" Instruction
Appellants argue that the trial court erred by failing to give
the jury a "mere presence" chargeSQi.e., an instruction that one's
presence in the area where drugs are found or association with the
person actually in control of the drugs, is insufficient to support
a finding of possession. Although such an instruction is
abstractly an accurate statement of the law, see United States v.
Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973), it does not follow
that the failure to so instruct was reversible error.12 Appellants
rely upon United States v. Cordova-Larios, 907 F.2d 40 (5th Cir.
1990), in which we reversed a conviction for failure to submit a
12 At the charge conference defense counsel stated "I want to make sure that the Court's definition of 'possession' includes the fact that the mere presence alone is not sufficient, that mere presence alone is not sufficient to convict the defendants." The court inquired if counsel were "objecting to the definition of 'possession,'" and counsel replied "insofar as it does not include a statement as to the mere presence, it does not in itself prove up possession and would not enableSQenable the jury to convict the defendants just because they were present." The court responded "I don't think the charge permits them to convict either defendant simply because they were present . . . . they have to find possession. 'Possession' is defined here." Later, defense counsel argued that "the proper precautionary instruction that mere presence aloneSQby not placing it in there, you're lessening the government's burden of proof," and objected "to the Court's failing to instruct the jury on 'mere presence' because we feel that the foundation of the case warrants it and that's the whole thrust of the case. By failing to include it, it amounts to a comment on the weight of the evidence by the Court and it denies the effective assistance of counsel because we will not be able to argue it effectively . . . ." The defense never tenderedSQorally or in writingSQthe "mere presence" instruction they desired. We assume, arguendo, that the objections were adequate so that we may properly treat the case as if an instruction had been requested (and objection made to the refusal to give it) that "mere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession." Stephenson at 1355.
16 mere presence instruction. However, in the present case no
reversible error is presented. First, it is well-established that
the refusal to submit a requested jury instruction is not
reversible error if the instruction was substantially covered in
the charge as given.13 In this case, the trial court's instructions
to the jury as to possession were sufficient to prevent a
conviction (or a finding of possession) based upon mere presence.14
Therefore appellants' mere presence instruction was substantially
reflected in the charge as given. In United States v. McKnight,
13 It is settled law that this Court will reverse the refusal to give a requested jury instruction only if that instruction
"(1) was substantially correct; (2) was not substantially covered in the charge delivered to the jury; and (3) concerned an important issue so that the failure to give it seriously impaired the defendant's ability to present a given defense." United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990), cert. denied, 111 S.Ct. 2036 (1991).
14 The trial court instructed the jury as follows:
"Possession, as that term is used in this case, may be of two kinds: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. You may find that the element of possession, as that term is used in these instructions, is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either alone or jointly with others." (Emphasis added).
17 953 F.2d 898 (5th Cir.), cert. denied, 112 S.Ct. 2975 (1992),
defendants similarly complained of the trial court's refusal to
submit a mere presence instruction. We held, however, that the
court's constructive possession chargeSQwhich was identical to the
charge delivered in this caseSQobviated the need for a separate
mere presence charge. We relied in McKnight in part upon United
States v. Erwin, 602 F.2d 1183, 1185 (5th Cir. 1979), cert. denied,
100 S.Ct. 1014 (1980), and United States v. Rojas, 537 F.2d 216,
200 (5th Cir. 1976), cert. denied, 97 S.Ct. 785 (1977), cases in
which we had reached the same conclusion. There is no indication
that a constructive possession charge was submitted to the jury in
Cordova-Larios, a fact which McKnight observed. "There is no
conflict, therefore, between the holdings of Cordova-Larios and
Rojas." McKnight, 953 F.2d at 904.
McKnight also affords a second basis for rejecting appellants'
assignment of error. "McKnight's claim fails," we said, "because
this case, unlike Cordova-Larios, is, by its undisputed facts, not
a 'mere presence' case." 953 F.2d at 903 (emphasis in original).
In McKnight, drugs and firearms were discovered in McKnight's
small, one-bedroom house where he lived with his 84-year-old mother
and a boarder. McKnight's theory of defense was that though
present he was unaware of the contraband. We stated that these
circumstances did not lend themselves, as a legal matter, to a mere
presence defense:
"The dominion and control associated with owning and living in a small, open house like McKnight's . . . is utterly inconsistent with the legal conclusion that McKnight was 'merely present' in a house full of guns and drugs in its common areas (and a gun in the dresser used
18 by McKnight)." Id. at 903 (emphasis in original).
By contrast, the facts of Cordova-Larios, which we recount in the
margin, are far more amenable to such a defense than are the facts
of McKnight.15 As we said, "The record sufficiently supports the
defensive theory of mere presence to entitle the defendant to the
requested instruction." Cordova-Larios, 907 F.2d at 42.
We believe that this case is closer to McKnight than to
Cordova-Larios. There is no evidence that appellants were mere
bystanders who happened to be at the scene of a crime, as in
Cordova-Larios. Quite the contrary, as in McKnight, the drugs were
indisputably discovered in a location the control over which cannot
be fairly attributed to anyone but appellants. Accordingly, it was
not error to refuse the mere presence instruction.
III. The Sufficiency of the Evidence
Appellants' final challenge is to the sufficiency of the
evidence. We will sustain the convictions if a rational jury could
have found as to each appellant that each of the elements of the
offense was established beyond a reasonable doubt. See Jackson v.
Virginia; 99 S.Ct. 2781, 2788-89 (1979); United States v. Bell, 678
F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 103 S.Ct. 2398
15 In Cordova-Larios, the defendant was a passenger in a truck owned his brother-in-law and driven by a man named Saenz who the two had met only the previous day. The brother-in-law had loaned the truck to Saenz, not the defendant, for Saenz to travel from Juarez, Mexico to Albuquerque, New Mexico. The defendant came along with the intention of buying goods. Border patrol agents gave chase after Saenz stopped the truck on a road by the Rio Grande and someone who had been hiding in bushes placed several bundles of marihuana in the bed of the truck. During the chase, the defendant fell out of the truck. The defendant testified that he had attempted to wrest control of the truck from Saenz but the latter had pushed him out of the passenger door.
19 (1983). The evidence will be viewed in the light most favorable to
the government. See Glasser v. United States, 62 S.Ct. 457 (1942).
A conviction for possession of drugs with intent to distribute, a
violation of 21 U.S.C. § 841(a)(1), requires the government to
prove that the defendants knowingly possessed contraband with the
intent to distribute it. See, e.g., United States v. Richardson,
848 F.2d 509, 511 (5th Cir.1988). Here, appellants challenge only
the knowing possession requirement.16 We hold that the evidence
suffices to support the jury's conclusion that appellants knowingly
possessed the drugs.
A. Possession
Possession, as noted previously, may be actual or
constructive. Ownership, dominion, or control over the contraband,
or over the vehicle in which it was concealed, constitutes
constructive possession. Here, Shabazz was driving, and Parker was
riding in, the car in which the cocaine was discovered. Parker
represented that he owned the vehicle. The two were traveling
together, and had been together in Houston for several days.
Accordingly, the jury could easily have found that appellants were
in constructive possession of the cocaine.
B. Knowing
We have said that, "Knowledge of the presence of contraband
may ordinarily be inferred from the exercise of control over the
vehicle in which it is concealed." United States v. Garcia, 917
F.2d 1370, 1376-77 (5th Cir.1990). In a number of recent cases, we
have added that, if the illegal substance is contained in a hidden
16 Appellants stipulated that, if the government proves knowing possession, they would concede intent to distribute.
20 compartment in the vehicle, we may also require circumstantial
evidence that is suspicious in nature or demonstrates guilty
knowledge. See, e.g., United States v. Pineda-Ortuno, 952 F.2d 98,
102 (5th Cir.1992), cert. denied, 112 S.Ct. 1990 (1992); United
States v. Gonzalez-Lira, 936 F.2d 184, 192 (5th Cir.1991); United
States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir.1990); United
States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.1990).
Here, there was additional circumstantial evidence from which the
jury could have found that appellants' possession of the cocaine
was knowing. Appellants gave inconsistent accounts of their stay
in Houston, were nervous, and became anxious as Officer LaChance
began to search the side of the car where the drugs were found.
Shabazz, the driver, gave the officers a false driver's license.
Similar evidence has been deemed sufficient to support convictions
in previous cases. See Pineda-Ortuno, 952 F.2d at 102
(nervousness, conflicting statements, and implausible story); Diaz-
Carreon, 915 F.2d at 954-55 (same); Anchondo-Sandoval, 910 F.2d at
1237 (inconsistent story); United States v. McDonald, 905 F.2d 871,
874 (5th Cir.), cert. denied, 111 S.Ct. 566 (1990) (nervousness,
inconsistent stories, heightened anxiety when search was getting
warmer). Furthermore, a screwdriver was lying on the front
floorboard of the driver's side of the car and there were fresh
nicks on the screws of the front air conditioning duct on the
driver's side from which the cocaine readily tumbled out when the
screws were loosened. The jury could properly have inferred that
the cocaine had been concealed only recently, thus implicating the
car's latest occupants. No defense evidence was presented.
21 Conclusion
For the reasons stated herein, appellants' convictions are
AFFIRMED.