Rivas v. US

• Decision Date: 23 August 2001
• Docket Number: No. 97-CF-304.,97-CF-304.
• Parties: Baltazar RIVAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

783 A.2d 125

Baltazar RIVAS, Appellant, v. UNITED STATES, Appellee.

No. 97-CF-304.

District of Columbia Court of Appeals.

Argued En Banc June 6, 2000.

Decided August 23, 2001.

Jaclyn S. Frankfurt, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Mary Patrice Brown, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, M. Jeffrey Beatrice, and Elizabeth H. Carroll, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and TERRY, STEADMAN, SCHWELB, FARRELL, RUIZ, REID, GLICKMAN and WASHINGTON, Associate Judges.

ON REHEARING EN BANC

GLICKMAN, Associate Judge.

Applying principles of constructive possession, a jury convicted appellant Baltazar Rivas and his codefendant 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 case 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 by-stander. We therefore must reverse Rivas's conviction.

I.

Viewed in the light most favorable to the government,¹ 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 floor-board. 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,² and he said nothing to inculpate himself.

II.

A.

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).³ 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).⁴ 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 "[m]ere 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).

B.

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 T.M., 577 A.2d 1149, 1154 n. 12 (D.C.1990) (citing cases). In In re F.T.J., 578 A.2d 1161,...