Sometimes, criminals can be smart. For example, consider the highly illegal trade of elephant ivory tusks. It makes me absolutely sick to think that such wonderful animals are slaughtered for their teeth, but it does happen, and far too often. What is interesting, though, is how difficult it is to catch these folks. A team from National Geographic decided to investigate the tusk trade, and they did so by creating a fake tusk embed with a GPS tracker. Once these investigators placed the fake tusks into circulation, they watched the tusks travel across the African continent. Th0e path taken by the tusks was one far away from roads. No roads, actually. The tusks were carried by hand, through dense forests, about 12 miles a day. Now, compare this sort of criminal endeavor with the American drug trade. American’s can’t get enough of their cars. They put all kinds of drugs and contraband into vehicles, stuffing it everywhere possible. That’s why so many drug cases arise from simple traffic stops. And, if the drugs aren’t found in the citizen’s car, drugs are often found in the back seats of the patrol car. American drug possessors could learn a thing or two from the patience of the evil tusk traders, but that’s a story for another day.
Patrol cars have so many people in them, when drugs are found in the back seat, it can be tough to prove where the drugs came from. Sure, the officer conveniently testifies that the car was cleaned and searched every time someone exited the back seat, but such testimony doesn’t prove much. Part of the problem is the fact that law enforcement does not conduct a full body search of a person arrested and placed into the back of a patrol car. So, if you’re in the unfortunate position of being chauffeured to the local jail, any drugs not found by the patrol officer will certainly be recovered by the full cavity search courtesy of the county jail intake division. By the way, it is a crime to “introduce contraband into a county facility”. If you don’t dump the drugs on you by the time you reach the jail, bringing these drugs into the jail will add more charges to an already bad day. The most common solution to this problem is simple. Hide the drugs in the back seat of the cop car. Easy enough, right? Wrong. Remember, most folks are handcuffed, hands behind their back. With the exception of a few contortionists, it is not an easy task to dispose of contraband this late in the game. After all, the officer driving is watching the road, right? Not only is he watching the road, he’s playing Convoy on his two-way radio, and goofing off on his laptop–all while driving. You and I would be given several tickets for such distracted driving, but law enforcement can do as they please. I’ve seen seat belt citations given by motorcycle cops, and so forth, and so on.
At the end of a long day of taking people to jail, how can an officer determine which passenger may have left a drug deposit in the back seat? This was the question posed to the appellate court in R.C.R. v. State, 40 F.L.W. D1882 (4th DCA 8/12/2015). The juvenile, R.C.R., was handcuffed, arrested, and thrown into the back of a police car. After thrashing around a bit, he was removed (probably for his own safety, but also because he was damaging the car). Once the back seat was empty, the officer looked around a bit, and noticed a baggie of cocaine hiding near the seat and the door. The trial court found R.C.R. guilty of possession of cocaine, and he appealed. Here’s the details.
First, the officer that arrested R.C.R. searched him briefly, before placing him in the back of the patrol car. This search began with a pat down for weapons, plus the removal of his cell phone from his pocket. After dropping R.C.R. off at the jail, the officer returned to the station to review the damage to the interior of the car. That’s when she noticed the baggie of cocaine. The officer checked the vehicle at the beginning of her shift, and the baggie wasn’t there. Nor did the baggie belong to the officer (duh, what officer would ever admit to such?). To make matters worse for R.C.R., no one else was in the back seat of the car all day, or for the five prior days. Yikes. Such low arrest numbers can jeopardize a career in law enforcement.
At trial, the defense attorney argued for dismissal because “the circumstantial evidence is susceptible to an interpretation that Appellant is innocent because someone else could have left the baggie in the vehicle and this reasonable hypothesis was not rebutted. Appellant also argued that, because the baggie was not in plain view, the State does not get the benefit of the presumption that Appellant had knowledge of the cocaine in the vehicle to establish constructive possession.” id.
Well, you’re probably sick of hearing this from me, but constructive possession cases are tough to prove. I’m sick of saying it, and I’m sick of explaining the concept to prosecutors who haven’t bothered to read the zillion cases out there outlining these basic principles (all prosecutors who I’m working on cases “now”, of course, are excluded). Actual possession means the drugs were physically in the defendant’s hand or pocket (or something being held, like a purse or suitcase). Obviously, we don’t have that. So, we have constructive possession, and this is “where a defendant does not have actual physical possession of contraband but knows of its presence on or about his premises and has the ability to exercise dominion and control over it. Mere proximity to contraband, standing alone, is insufficient to establish constructive possession of the substance. The state must present independent proof of the defendant’s knowledge and ability to control the contraband.” id, citing State v. WIlliams, 742 So. 2d 509 (Fla. 1st DCA 1999). This is a pretty simple concept, but few judges and prosecutors want to acknowledge it. It’s bad for business.
The appellate court threw out R.C.R.’s conviction, noting that “there was no independent proof showing that Appellant ever had knowledge of the presence of the contraband. . . .Nor do the testimony and the photographic evidence support that the contraband was in plain view to establish knowledge in that sense. The photograph of the baggie of cocaine admitted into evidence showed that the baggie was found between the end of the backseat and the door, making it only visible when the door was open. Additionally, as in Culver v. State, ‘the State did not present any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish . . . dominion and control.” 990 So. 2d 1206 (Fla. 2d DCA 2008). Accordingly, constructive possession was not established.
Call me cynical, but this officer will not make this mistake again. All future police reports involving similar facts will miraculously satisfy several prongs of constructive possession, as this officer will not regurgitate the following magic phrases from now on; (1) “Defendant admitted to placing the drugs in the backseat”, and (2) “the baggie was in plain view behind the driver’s seat.” I hate to tell you how these things really work, but somebody’s got to do it. You need a true assessment of how the war is going from the troops here on the ground. That’s me. And, I’ll telling you, almost every case coming out of Osceola County, for example, involves a full confession. It’s unbelievable. Orange County cases and Seminole County drug cases have a 14.5% confession rate (made up that number, but I’m in the ballpark), but Osceola County somehow gets confessions on 80% of their weed cases? (actual number higher, I think) Someone should do a study on this sort of thing, because we’ve got everyone on the police force carrying a recording device–a smartphone, for example (yes, your phone can record audio)–yet somehow not one confession gets recorded. Hum.
[PIC: I took this photo earlier this year in Sarasota]