Snyder v. State

• Decision Date: 29 February 1984
• Docket Number: No. 2-783A227,2-783A227
• Citation: 460 N.E.2d 522
• Parties: Joey SNYDER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 522

460 N.E.2d 522

Joey SNYDER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2-783A227.

Court of Appeals of Indiana,

Second District.

Feb. 29, 1984.

John W. Forcum, Hartford City, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge (Writing by Designation).

STATEMENT OF THE CASE

Defendant-appellant Joey Snyder (Snyder), was convicted by a Blackford Circuit Court jury of the offense of possession of more than thirty grams of marijuana under IND.CODE 35-48-4-11(1). From an executed sentence of two years, he appeals.

We affirm.

STATEMENT OF THE FACTS

Hartford City Police officers arrested one Dalton (Pete) Hood for burglary. After confessing, and in hope and expectation of leniency, he and his brother-in-law, Jeff Johns, volunteered information and executed search warrant affidavits stating that they had visited Snyder's apartment on June 12, 1981. While there, they had seen a garbage bag in plain view containing a large amount of marijuana. The affidavits stated that they had purchased marijuana from Snyder in that apartment on that occasion, as well as previous occasions. Thereafter, on the same day, June 17, 1981, an extensive probable cause hearing was conducted in Circuit Court in which Hood and Johns testified before the judge. The hearing produced substantially the same information as contained in the affidavits. At the conclusion thereof the Blackford Circuit Court judge determined that probable cause existed and issued a search warrant for the search of Snyder's apartment for contraband. The officers who executed the warrant, found the apartment as described by Hood and Johns, and they were admitted to the apartment by Snyder who possessed a key to it. The search revealed one large garbage bag in plain view in a bedroom; the bag contained 24 pre-weighed and packaged baggies of marijuana. Another garbage bag containing loose marijuana was discovered draped over a clothes hanger rod in a closet of another bedroom. The total amount of marijuana weighed 445 grams and had an estimated street value of $35,000.00. Snyder was the single known occupant of the apartment and possessed the only key. He had rented it on June 1, 1981, and had paid cash in advance. Also found in the apartment during the search was an additional supply of baggies, a set of scales calibrated to milligrams, and other small amounts of marijuana. Johns, who testified at the trial, stated that on his previous visitations to Snyder's apartment he had seen a pistol and large amounts of cash.

Snyder was charged with possession of marijuana in an amount in excess of 30 grams. He filed a pre-trial motion to suppress the evidence obtained by the search warrant, and at the hearing on that motion, conducted on October 27, 1981, Hood recanted his probable cause testimony and affidavit. Johns did not. However, a year later, while Johns was in jail, in a pre-trial deposition, he recanted his probable cause affidavit and testimony. That deposition, as well as the testimony in his first hearing, was made the subject of a second motion to suppress, which was also overruled. Nevertheless, at trial Johns testified in accordance with his original probable cause testimony and affidavit. He testified on dealing marijuana with Snyder in that apartment, and seeing the scales, bags, pistol, quantity of money, and as much as three or four large garbage bags of marijuana at one time.

ISSUES

Snyder raises two issues on appeal:

I. Whether the State failed to prove actual or constructive possession of the marijuana on Snyder; and

II. Whether the trial court erred in admitting evidence that was the fruits of the search warrant which was shown to be defective and not supported by truthful testimony.

DISCUSSION AND DECISION

Issue I: Possession

IND.CODE 35-48-4-11 creates an offense for the knowing and intentional possession of marijuana, and when the amount possessed by the defendant is in excess of 30 grams, the offense is a Class D felony. The court in Watt v. State, (1980) Ind.App., 412 N.E.2d 90, reviewed the rules on possession as follows:

"In order to establish possession of a controlled substance, proof of actual possession is not required. Johnson v. State (1978) Ind.App. , 376 N.E.2d 542; Phillips v. State, (1974) 160 Ind.App. , 313 N.E.2d 101. Nor must the possession be exclusive. Ludlow v. State, (1973) Ind.App., 302 N.E.2d 838, 843 rev'd on other grds, 262 Ind. 266, 314 N.E.2d 750. Non-exclusive constructive possession is sufficient. See Martin v. State (1978) Ind.App. , 372 N.E.2d 1194.

Our Supreme Court has defined constructive possession as 'an intent and capability to maintain control and dominion' over the contraband. Thomas v. State (1973), 260 Ind. 1, 291 N.E.2d 557, 558. Accord, Edwards v. State (1979) Ind.App. , 385 N.E.2d 496; Hutcherson v. State (1978) Ind.App. , 381 N.E.2d 877; Mills v. State (1978) Ind.App. , 379 N.E.2d 1023.

Proof of a possessory interest in the premises in which a controlled substance is found is adequate to show the capability to maintain control and dominion over the substance. Hutcherson, supra; Mills, supra; Corrao v. State (1972), 154 Ind.App. 525, 290 N.E.2d 484. However, when a person does not have exclusive possession of the premises, 'mere presence' in the place is not sufficient proof of intent to possess the substance. See Ledcke v. State (1973), 260 Ind. 382, 296 N.E.2d 412. The element of intent is proved by evidence of the accused's knowledge of the nature of the substance and its presence. Thomas, supra; Hutcherson, supra. Although such intent may be inferred when possession of the premises is exclusive, the inference must be supported by additional circumstances if possession of the premises is not exclusive. Martin, supra; Hutcherson, supra."

412 N.E.2d at 98.

Judge Shields, in her dissent in Parson v. State, (1982) Ind.App., 431 N.E.2d 870, added:

"Additional factors present in nonexclusive possession situations which have been held sufficient to link the accused with the substance in question include: Thomas, (defendant seated near table where narcotics were found in open view); Ledcke v. State, (1973) 260 Ind. 382, 296 N.E.2d 412 (drugs in manufacturing setting and defendant's attempted flight); Griffin v. State, (1972) 259 Ind. 205, 285 N.E.2d 644 (defendant admitted owning narcotics); Watt, (close proximity of defendant's clothing to contraband); Hutcherson v. State, (1978) Ind.App., 381 N.E.2d 877, reh. den. (1978) 382 N.E.2d 983 (defendants attempted flight); Mills v. State, (1978) Ind.App., 379 N.E.2d 1023 (incriminating paraphernalia linked to defendant); Moss v. State, (1975) 165 Ind.App. 502, 333 N.E.2d 141, 335 N.E.2d 633 (furtive gestures)."

431 N.E.2d at 874.

The evidence most favorable to the state revealed that Snyder was the sole occupant of the apartment and possessed the only key. A store environment existed complete with pre-packaged retail baggies, scales, a large amount of contraband, cash, and extra baggies. From this place Snyder sold marijuana. Snyder's argument under this issue is specious.

Issue II: Probable cause

Snyder's argument proceeds thusly. He does not challenge the initial formal adequacy of the probable cause testimony or affidavits, but argues that since the affidavits and testimony were recanted by the two witnesses, Hood and Johns, probable cause did not exist to support the issuance of the search warrant. Therefore, the trial court erred in not suppressing the evidence obtained thereby. Neither Snyder nor the State has presented any authority directly on point, and our research has disclosed none.

The Supreme Court of the United States recently, in Illinois v. Gates, (1983) --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527, discussed probable cause:

"In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Id. [ Brinegar v. United States, 338 U.S. 160], at 175, 69 S.Ct. [1302] at 1310 . Our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding 'particularized suspicion,' is also applicable to the probable cause standard:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

As these comments illustrate, probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972), 'Informants' tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability.' Rigid legal rules are ill-suited to an area of such diversity. 'One simple rule will not cover every situation.' Ibid.

* * *

* * *

"... 'probable cause' ... means less than evidence which would justify condemnation... It imports a seizure made under circumstances which warrant suspicion ... 'only the probability', and not a prima facie showing, of criminal activity is the standard of probable cause." (Footnotes omitted.)

103 S.Ct. at 2328-30.

See Watt, supra; Layman v. State, (1980) Ind.App., 407 N.E.2d 259. Inferences may be drawn by the magistrate from the facts...