Rivas v. US, No. 97-CF-304

• Decision Date: 12 August 1999
• Docket Number: No. 97-CF-304, No. 97-CF-416.
• Citation: 734 A.2d 655
• Parties: Baltazar RIVAS, Appellant, v. UNITED STATES, Appellee, and Jose M. Melgar, Appellant, v. United States, Appellee.
• Court: D.C. Court of Appeals

734 A.2d 655

Baltazar RIVAS, Appellant, v. UNITED STATES, Appellee, and Jose M. Melgar, Appellant, v. United States, Appellee.

Nos. 97-CF-304, 97-CF-416.

District of Columbia Court of Appeals.

Argued January 21, 1999.

Decided August 12, 1999.

Tamara A. Shockley, Washington, for appellant Baltazar Rivas.

Nathan I. Silver, Washington, for appellant Jose M. Melgar.

Stefanie F. Roemer, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB, FARRELL, and RUIZ, Associate Judges.

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 Melgar. 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 light 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 Court 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.T.J.'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.

FARRELL, Associate J., concurring.

For the reasons Judge Schwelb states, I agree that our prior decisions allowed the jury fairly to conclude that appellants, including Rivas, had constructive possession of the drugs. Those decisions treat the combined facts of presence in a car (as distinct from a room, a plane, or a train) and immediate proximity to contraband in plain view as enough to prove shared possession, if unexplained to the jury's satisfaction. I do not pretend that this proposition is unarguable. Perhaps, especially in today's culture, the fact that a passenger has taken no steps to distance himself from drugs visibly meant for sale lying inches from him in a car driven by a friend says nothing, or too little, about whether he personally has "some stake in [the drugs], some power over them." United States v. Pardo, 204 U.S.App. D.C. 263, 277, 636 F.2d 535, 549 (1980).¹⁰ Maybe, too, the unlikelihood that someone openly transporting drugs for sale would pick up an innocent friend or stranger, People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546, 550 (1975), is not enough to prove — beyond a reasonable doubt — that the passenger has 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). But, as Judge Schwelb points out, the fact that at least one legislature has found these facts sufficient to create a rebuttable presumption of shared possession, which the Supreme Court in turn has sustained, County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), provides substantial support for the reasonableness of letting a jury draw that inference as well when offered no other explanation for the defendant's knowing presence. Indeed, in Ulster County, after rejecting the respondent-defendants' argument that they could not have shared possession because the prohibited guns were in a co-defendant's pocketbook (rather than on the console equidistant between driver and passenger, as in our case), the Supreme Court analyzed the case in terms relevant here:

[T]he case is tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile. In such a case, it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons.

Id. at 164-65, 99 S.Ct. 2213. Judge Ruiz's suggestion, post, that by allowing this inference without a statutory presumption we usurp the legislature's role is strained: the legislature has not defined "possession," much less "constructive" possession, but instead...