Rivas v. United States

it sanction that opinion and in the court’s exception Bar Counsel takes recommendation, imposes. report and Board’s any opposition not filed

respondent has scope of review and

it. our limited Given presumption recip- in favor of identical adopt Board’s rec- discipline, we

rocal Goldsborough, re In

ommendation. See (D.C.1995); Zilberberg, (D.C.1992). According- RIVAS, Appellant, Baltazar ly, Hunter, Betty M. ORDERED a/k/a STATES, Appellee, UNITED Ballester, suspended shall be Betty M. of law in the District practice period ninety days. for a Columbia Appellant, Melgar, Jose M. suspension pro be effective nunc This shall 4, 1998, September the date of tunc as of respondent’s suspension. interim States, Appellee. United 97-CF-304, 97-CF-416. Nos. J., TERRY, concurring. Associate Appeals. Court of of Columbia District Board, report unanimous The recommendation, “specifically Argued deeline[d] 1999. Jan. would say appropriate sanction what Aug. Decided the Board be if these facts were before original jurisdiction proceeding.” an explain: on to

Board went by the particular, are troubled Re-

Disciplinary finding that Panel’s

spondent displayed a lack of candor be- provided Panel and an affidavit

fore the was of a dubious ori- exhibit that dishonesty If had been

gin. violation found, a more severe sanc-

charged appropriate. have been

tion If agree this ease

I with these sentiments. matter, I original us

were before as- ninety-day sus

might conclude that a well inadequate as a sanction for Ms.

pension is However, disciplinary

Hunter’s violations. proceeding, it reciprocal is a this

since rebuttable

subject well-established will be the that our sanction

presumption original disci imposed as that

same is the authority, which in this case

plining for the Dis District Court States See, e.g., In re Zilber

trict Columbia. (D.C.1992). Ac

berg, 612 A.2d join in the I

cepting presumption, SCHWELB, FARRELL,

Before RUIZ, Judges. Associate SCHWELB, J. Associate Melgar Baltazar Rivas and M. Jose were by convicted of cocaine (PWID), with intent to distribute in vio- 33-541(a) ‍​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​‌​‌​​‌‌​​​‌‌‌​‌​‍(1998). § lation of D.C.Code On appeal, they challenge rulings number by the judge. trial Perceiving revers- error, affirm. ible I. 11, 1996, February at approximately

On a.m., 1:00 officers United States Secret Service observed a car which was stopped in the middle of two-lane street blocking Melgar traffic. was in the seat, driver’s while Rivas the front passenger. Two other men were the rear seat.

After moved to the side of road, the officers issued a citation to Mel- gar. so, they While doing observed open, forty-ounce container of in- alcohol side vehicle.1 When one of the officers leaned into the car to the open retrieve container, he observed two clear sandwich console, bags in the front between the emergency passenger brake and the seat. bags One of the contained twelve rocks cocaine; crack bag the other contained six Shockley, Tamara A. Washington, for rocks. Officers also recovered $236 appellant Baltazar Rivаs. Melgar’s person. cash from Both defen- Silver, ultimately Nathan I. dants were arrested and Washington, appel- for con- Melgar. lant M. victed PWID.2 Jose Roemer, Stefanie F. Assistant United II. Attorney, States with whom Wilma A.

Lewis, Attorney, United States and John pretrial Both defendants filed motions Trosman, R. suppress Fisher Elizabeth Assis- cocaine which recov- tant United Attorneys, States were on the ered from judge the car. The trial denied brief, motions, appellee. concluding the vehicle 25-128(a) (1996) ("no § per- 1. See D.C.Code claimed the cash recovered from son shall in the sess in an District Columbia ... represented wages. him his Rivas did not open any container alcoholic bever- passengers take the stand. The rear seat age any any street ... or in vehicle in or detained, they prosecuted. were not samе”). upon the Neither rear seat was called aas prosecution witness either defen- trial, Melgar 2. At the testified his own dant. drugs, behalf. He denied (D.C.1995); Bernard v. violation, 667 A.2d stopped for a traffic properly (D.C. of alcohol was open container 1990). fight Viewing the evidence properly the officers and that see cocaine, prosecution, visible which was most favorable recovered M.I.W., impar held that after eye.3 judge the naked find, bag beyond had test- rationally the contents of the sandwich jury could tial cocaine, doubt, the officers positive ed for knew of the that Rivas reasonable Melgar, to and that probable See, cause search e.g., Kenhan of the cocaine. location (D.C. was there- Melgar the cash recovered 253, States, 254 v. United lawfully seizеd. States, fore 395 1970); Hamilton v. United (D.C.1978).5 24, 28-29 A.2d challenge the appellants now

The primarily that judge’s ruling, claiming prosecution question The whether is “pretextual.” There stop of the car was the desti- guide proved Rivas’ intention finding that support judge’s for the ample difficult, for there more ny is regulations Melgar had violated traffic how Rivas had long no as to was evidence container was view. open But “our decisions in the vehicle. been stop no that the traffic There was evidence requisite intent ... doubt that the leave no been, if it had pretextual;4 was even con- inferred from the may be subjective motivation is irrelevant. officers’ automobile, in plain traband 806, States, 812- v. United 517 U.S. Whren conveniently accessible the defendant.” (1996). 13, 1769, 116 135 L.Ed.2d 89 S.Ct. (D.C. 1161, 1163 A.2d that the motions Accordingly, we conclude 1990) curiam); Burnette v. (per see also suppress properly denied. (D.C. 1082, M.I.W., 1991) curiam); (per III. conclude that at 577. We Rivas claims that the evidence was readily satisfies against evidence as a matter of law show that insufficient County also Comt this standard. See constructively possessed the cocaine. Allen, 140, 164- County v. 442 U.S. Ulster judge He contends that the trial therefore L.Ed.2d 777 66 & n. S.Ct. denying judgment erred in his motion for (1979) (sustaining legislative presumption Although position acquittal. Rivas’ is are aware of an automobile implausible principle, it is foreclosed not in, of, possession of culpably involved by binding precedent in this court. which are amounts of narcotics substantial vehicle); or secreted abandoned order to establish 160, 379 Leyva, 38 N.Y.2d People prosecution required possession, the was (1975) 30, 341 N.E.2d N.Y.S.2d of the location of prove that Rivas knew (“[w]е persons trans- do not believe that the pow and that he had both the cocaine of contra- dealership quantities porting dominion er and the intention to exercise M.I.W., driving around with See, likely go e.g., In re band are or control over it. accurate, pretextual- prove flashlight hardly it would into be 3. One of the officers shone his ity. discovety of the cocaine so that the Inadvertence, however, was not inadvertent. Hamilton, longer necessaty applica- for condition the inference Kenhan and 5. In both “plain Horton v. tion of the view” doctrine. than in this was far weaker 128, 130, California, case, 110 S.Ct. 496 U.S. convictions were defendants’ but both (1990). decisions, 110 L.Ed.2d 112 how the time of these affirmed. At ever, held, explicit at least this court had not ly, establish constructive did that to appellants claim that the officers required to prosecution after it was no approach the vehicle until dominion to exercise blocking defendant’s longer street. Even if as- the contraband. sequence control over of events to version of the sume this banc, innocent friends or that they likely sitting are the court en should the full (citation pick up omitted);6 strangers”) petition court choose to grant rehear- Deagle, Commonwealth v. en ing banc in this or in a comparable cf. Mass.App.Ct. 409 N.E.2d 1351 one.8 (1980) (although rear knew PCP was the car and that driver IV. it, smoking opinion court was “of the Melgar challenge does not the sufficien- that some additional beyond cy the evidence that he constructively showing mere knowledge necessary possessed claims, the contraband.9 He make out a casе that of the bag prosecution failed to defendant”);

was shared Crisman prove beyond a reasonable doubt that he Commonwealth, 17, 197 Va. 87 S.E.2d specifically intended to distribute the co- (1955). 796 caine. Given the force of language our in In re prosecution’s According to the ex F.T.J. —“our decisions ... leave no witness, pert eighteen the light doubt”—and in rocks of crack of the authorities that preceded cocaine decision, Melgar’s and recovered from followed that that, 1.92 notwithstanding weighed grams believe and had a the inevit combined able approximately existence of factual street value of distinctions be A $360. cases,7 legal tween different the substantial amount of cash standard was recovered in articulated F.T.J. from Melgar. expert has become “embed ‍​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​‌​‌​​‌‌​​​‌‌‌​‌​‍ testified that in ded warp the woof our law.” the cocaine In was sufficient for 192 “uses.” A.R., (D.C.1996). 470, re that, 679 A.2d In conclude We viewed the light most our a division of this prosecution, court therefore favorable to the the evidence depart is not free from F.TJ.’s stan was sufficient Melgar’s to establish Ryan, 310, See, dard. See M.A.P. v. 285 A.2d to distribute. e.g., Shorter v. United (D.C.1971). States, 1133, (D.C.1986); The issues raised course, Judge may, States, Ruiz be addressed Chambers United Leyva, 6. In the Drug applying court was New Haddox, Abuse And The Law Sourcebook 6.3, statutory presumption. legislature (1998); York's a § If at 6.22-6.26 F. Lee Bailey & may indulge presumption, a such it Handling B. Henry Rothblatt, Narcotic And should not be impartial (1972 unreasonable for an Drug § at Supp. 49-50 & Cases juty 1998); draw similar inference. H. Charles Whitebread & Ronald cf. Stevens, Constructive Possession in Narcotics Not, Cases: To Have and 58 VA. Have U. L. 7. In there were three of an (1972) аutomobile, (suggesting REV. 765-66 “new recovered a ma- approach” to constructive and ar- gun handguns chine and two in the vehicle. Ruiz, guing, Judge does that “the doctrine arguably permitted This the inference that possession effectively imposes of constructive occupant weap- each was associated with one liability present being place Nevertheless, decidendi," at a where on. the "ratio used," "judicial decision, are and that use basis for the set forth in lan- general possession of a statute to assert the guage quoted. which we have liability usurps legislature’s prop- broader function”). er above, 8. In addition to the authorities cited good there is a deal of relevant case law in Melgar jurisdictions, 9. Because was the owner of the scholarly other as well аs com- see, M.I.W., e.g., mentary, general 667 A.2d at presented issue reasonably because the could appeal. conclude point Rivas' directions, The decisions in various Melgar gave exculpatory testimony, false directly but we have found no Short, point. generally, in tation, see Irick v. United n. 8 Emile F. Anno- A.2d (D.C.1989), Melgar carrying and because Conviction Possession Illicit cash, Drugs large see Found in which amount of authorities cited Automobile of Defen- text, infra, Occupant, dant was not Sole A.L.R.3d of constructive (1974 (collect- possession against Supp.1998) Melgar stronger 1331-35 & than cases); ing against 1 Gerald F. Uelmen Rivas. & G. Victor Indeed, presence. knowing (D.C.1989); Bernard, defendant’s supra, 575 respon- rejecting after County, Ulster 1196 n. they could argument dent-defendants’ Affirmed. possession because shared not have in a co-defendant’s prohibited guns were FARRELL, J., concurring. Associate (rather than on the console pocketbook states, I Judge the reasons Schwelb For passenger, equidistant driver between allowed the prior that our decisions agree case), ana- Supreme Court as in our appellants, in- jury fairly to conclude that here: relevant lyzed the case terms Rivas, had constructive cluding to one which case is tantamount [T]he treat drugs. of the Those decisions on the floor or guns lying (as in a car presence facts of combined of the car in the seat of the train) room, or a plane, distinct occupants of automobile. three other and immediate contraband case, surely rational such enough shared view as respondents was infer that each of the session, unexplained jury’s if satis- fully aware propо- pretend I do not that this faction. the intent and had both the unarguable. Perhaps, especially is sition and control over to exercise dominion culture, passen- today’s in the fact a weapons. the himself ger steps has taken no to distance 164-65, Judge Ruiz’s Id. at 99 S.Ct. 2213. drugs visibly lying meant for sale allowing this in- suggestion, post, from him in a car driven a friend inches statutory presumption a ference without little, says nothing, or about whether too role usurp the is strained: legislature’s we personally has in [the he “some stake “posses- legislature has not defined the power drugs], some over them.” United sion,” much less “constructive” Pardo, 263, U.S.App. v. D.C. States 204 incorporated has the common but instead (1980).1 535, 277, Maybe, 636 F.2d 549 developed by terms definition of those law too, openly the unlikelihood that someone courts. the pick up transрorting drugs for sale would posses People v. suffices constructive stranger, an innocent friend or What and, 30, 160, judges long sion has -bedeviled Leyva, 38 N.Y.2d 379 N.Y.S.2d 341 See, (1975), doubt, v. 546, States enough juries. e.g., 550 not United N.E.2d is 227, Holland, 225, 445 U.S.App. 144 D.C. a doubt—that prove beyond reasonable — (1971)(Tamm, concurring) J. has vis F.2d 703 a “substantial voice (“The one reads on construc more cases drug[s].” United States Sta a-vis ten, 100, 106, deeper plunged is he possession F.2d tive U.S.App. D.C. 581 The rule (1978). But, subjectivity.”). a of into thicket Judge as Schwelb here, like apply of that we out, legis our cases points the fact that at least one in Coun upheld Ulster statutory inference has found these facts sufficient lature objectify the standard ty, is an effort to presumption a of shared create rebuttable clear notice that the de provide Supreme in well as possessiоn, which the Court me, they weren’t so sustained, “they weren’t Ulster fense County has Court turn of con the narrow Allen, mine” does not work S.Ct. County U.S. automobile, prime a facilitator (1979), of an fines provides sub 60 L.Ed.2d discarding that trafficking. Before drug support for the reasonableness stantial leaving rule, we are be sure as well we should jury draw that inference letting of deei- haphazard regime place explanation for the no other when offered someone, the door he left car to talk to knew the Certainly whether Rivas indicating reasonably intended open, question, even were next to him was than a was more the car and so using a to re-enter police them though the discovered occupant. Moreover, momentary ''casual” stepped out flashlight. when Rivas sionmaking Judge Tamm decried in govеrnment which must attorneys prosecutors “pres- defense both “knowingly power ent their cases with unfortunate knowl- intention at a given time to exercise do edge that the posses- control”); T.M., law constructive minion or say (D.C.1990) sion is what we will (same). our next 1149, 1151 opinion.” Id. at 445 F.2d at 704. have, notes, Although majority as the said that intent exercise dominion and

RUIZ, J., concurring. Associate “may control be inferred pres- automobile, ence of contraband I am constrained to agree that the evi- Rivas, conveniently dence was accessible sufficient to convict defendant,” States, see Burnette v. front-seat passenger, the offense of (D.C.1991) distribute, (per session with intent to cu based on riam), theory question I whether that possession.1 I statement reluctantly, reach that either makes is supported by conclusion sense or because First, only upon reading which close of our govern- cases. ment relied to implicate cases which that he we have concluded that the had been seated in the front passenger evidence is sufficient to establish construc upon next to center console which tive have had additional facts ziplock discovered two bags supporting the defendant had the req cocaine while Rivas was outside the car intent. uisite See Parker v. United speaking (D.C.1991) acquaintance to an on the side- 601 A.2d 45 (concluding evi away walk several feet from ‍​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​‌​‌​​‌‌​​​‌‌‌​‌​‍the car. dence sufficient for constructive There was no presented evidence the where evidence showed that “narcotics-lad length of time that bag Rivas had been in the en” rested in view on front seаt car or whether Rivas engaged was in an of car equidistant appellants ap from and ongoing drug pellants venture Melgar, with were involved in ongoing criminal driver, or F.T.J., (D.C. with passengers activity); the two 578 A.2d 1161 1990) curiam) backseat.2 The fact that (per were (concluding evidence close enough to have been in his sufficient to constructive posses establish plain view and accessible him is sion of gun appellant suffi- where had been in minutes, cient to establish the first two elements of 15-20 there were three possession knowledge car, constructive and appellant three had — drugs and the ability to possess gun, exercise control motive to and manner States, over them. gun See Brown v. United which protruded from under seat sug (D.C.1988). 546 A.2d 394-95 gested Lan- placed had from been there guage in our unequivocally seated); cases states appellant where was Tucker v. States, (D.C.1980) same of proximity evidence of United 421 A.2d 32 (per curiam) contraband in view also (concluding is sufficient evidence sufficient to necessary establish third element support possession pis constructive where a showing of possession protruded constructive tol from under armrest in front —that Rivas in some way controlled or had the seat next appellant where had been intent to drugs. exercise control over the sitting appellant and in posses was seen States, Bernard v. See United gun days arrest); A.2d sion three before (D.C.1990) Brown, States, (citing su- Holley United 286 A.2d 2) (D.C.1972) pra, 394 n. (explaining (concluding evidence sufficient possession, to establish possession constructive constructive where gun was agree argument, 1. I majority repre- alsо with the that the evi- 2. At oral counsel for Rivas Melgar, dence was sufficient to convict driver and owner gotten just sented that Rivas had into the car vehicle, and that the after was offered ride. suppression properly motions denied. cases on our decided only partially beyond the facts of found on rear seat of issue, in Burnette including the facts appellant’s a coat and within covered Thus, the and, seat, re F.T.J. themselves. when and In right front reach jurisprudence comprise our vehicle, lunged for cases appellant to leave asked this coat). States, evidence in suggest that the this area But see Hamilton v. United (D.C.1978) suffi- was less than we deemed (concluding evi posses- past cient in the for constructive support finding of con dence sufficient to gun where was found sion. possеssion structive

wedged and door between the merits doubt about There is serious sitting passen appellant had been permitting an inference —sufficient stopped); Ken ger seat when vehicle was an individual’s intent without more —of (D.C. States, han v. control dominion and over contra- exercise 1970) sufficient for (concluding evidence of that facts contra- band sole gun where butt of constructive view and accessi- presence band’s pas out from between backrest and stuck starting point bility to an individual. appellant where senger seat to left of require- for the intent must be the reason when the vehicle was sitting had been Here, unfortunately, our cases do ment. stopped); Waterstaat United Traditionally, con- light. much not shed (D.C.1969) (concluding A.2d 507 defined as: structive been posses support sufficient tо a) knowledge of contra- where found on front seat gun sion b) band; to exercise domin- appellant passenger).3 between driver and ion over the contraband. and control Tucker, Brown, 394; swpra, 546 A.2d at

A review of our cases therefore shows (“To prove construc- and In re 421 A.2d at 35 holdings Bernard T.M., be adduced possession, and tive evidence must that intent to exercise dominion establishing [contraband] necessary element of construc- control is conveniently supported by most of accessible tive (citations cases; presence.”) knew of its our but that the in Bur- that he statements omitted). the Bernard requisite and In re nette the intent proof firmly T.M. cases established element of intent be satisfied possession test in of the constructive presence of of contraband in element dеfendant, part jurisprudence;4 as of our proximity appear go to the ”) Hamilton, (citation omit directly through others’ and were de- or 3. Kenhan Waterstaat 369, ted); Hastings, twenty-one years before we v. 918 F.2d cided twelve United States prong expressly (2d Cir.1990) pos set out the third (defining "intent” constructive 373 " possession Bernard. See constructive in power ‘knowingly having the as session infra. mainly on the ele- The Hamilton court relied given to exercise at a time and the intention accessibility to find constructive ment of object, either and control over an dominion than the element of intent. session rather Likewise, ”) (citation through omit directly others’ or Kenhan, only addressed in court 143, State, ted); 145 v. 593 So.2d Palmer presence knowledge the element of 1) proof (requiring ac (Ala.Crim.App.1991) contraband, And, possess not intent to it. control; 2) exercise physical intent to tual or Waterstaat, knowledge focused on court control; 3) external man and dominion and Moreover, accessibility, and not intent. over control contra of intent and ifestations explicitly in- none of these cases was intent State, omitted); band) (citations McNulty v. proximity. view and ferred from 1214, 1995) (Del. (outlining ele 1217 655 A.2d 1) possession as knowl constructive ments of jurisdictions require in A of other number contraband; 2) ability edge to exercise possession. as an element of constructive tent contraband; and over dominion and control 3) Armstrong, 1998 WL See States v. United People v. guide destiny); intent *3, 10774, 278413, *3 U.S.App. 1998 LEXIS 321, McNeely, Ill.App.3d 55 Ill.Dec. 99 Cir.1998) (7th (describing pos constructive “ (1981) (noting that con 298 426 N.E.2d halving] power 'knowingly as session present defen possession is when structive given time to exercise and the intention at capability maintain and object, dant has intent over an either dominion and control 662

neither case dealt with contraband located only inferences’ we meant not access and T.M., a vehicle.5 In re this court knowledge but the intent to exercise do- recognized distinction, stating control”) “[t]his is minion or (emphasis added); see Brown, anot case such supra, as also Speight 396-97, Waterstaat, at supra, 252 A.2d 794, (D.C.1991) T.M., (citing 796 In re at which was held that the requi 5) supra, 577 1151 A.2d at n. (noting that site may inferences be drawn from the possession, constructive gov- location of weapons show; view and sub “(1) ernment must stantially within a defendant’s reach in the (2) knew of the of the drugs; location closer confines of an automobile.” 577 he had the dominion exercise at A.2d 1154 n. 12. In Brown and Waterst- them; and, (3) and control over that he in- aat, however, it is clear that the “requisite guide tended to their destiny”). While inferences” referred to were tradition intent an underlying been ele- al elements of knowledge accessibility, and ment in the line culminating of cases Brown, rather than intent. See supra, 546 Bernard,6 F.T.J. court applied (holding A.2d prox “requisite language inferences” imity is permit jury sufficient to to infer recently recognized prong largely access); Waterstaat, convenient supra, 252 based, discussion, without apparently, on A.2d at (inferring ‍​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​‌​‌​​‌‌​​​‌‌‌​‌​‍knowledge from fact consideration of the “closer confines anof gun was in plain view and accessibili automobile.”7 ty from trial court’s determination that Bearing in require- mind that the intent gun was in close to appellant). ment Nonetheless, was added to the require- trаditional in In re ments first involving accessibility following vehicle our contraband, explicit immediately it is requirement questionable of the intent prong in Bernard, this court whether “requi permitting extended the inference of intent site inferences” analysis to intent. include same facts establish knowl- A.2d (“[b]y ‘requisite at 1162-63 edge and accessibility guts imposition contraband, possession control scribing possession "knowing- constructive as contraband); is aware of Person ly halving] power both the and the intention State, (Ind.Ct.App. N.E.2d given at a time to exercise dominion 1996) (finding when added); thing”) (emphasis control over a capability has defendant intent and to main T.M., supra, (recog- 577 A.2d at 1151 n. 5 contraband); tain dominion and control over that, nizing traditionally, our case law has Spencer, Pa.Super. Commonwealth v. explicitly specified guide destiny that intent to (1993) (defining construc of contraband is an element of constructive " power tive 'the control the suggesting point may that be and the contraband exercise to that explicit in noting certain and explic- decisions ”) (citation omitted); Reyes, control’ State v. requirement it intent in District of Columbia (R.I.1996) (noting that jury possession). instruction on constructive possession is established showing presence that accused knew of 7.I have jurisdic been unable to find another contraband and had intent to exercise control that, it); statutory presumption, Layman, per tion absent a over State v. 953 P.2d (Utah Ct.App.1998) (requiring solely mits an inference of intent nexus between from See, accused and proximity. contraband sufficient to allow e.g., and Hishaw v. Okla ability homa, inference that accused had bоth and (Okla.Crim.App. 568 P.2d 644-45 intent to exercise dominion and control over 1977) (finding evidence insufficient to contraband). drugs where were in view on feet, appellant's noting floor of car near and drugs 5. The Bernard case dealt with found presence that "mere of the defendant in even outdoors, while In T.M. addressed a such confined area an automobile interi- apartment. located in an not, inor which illicit are found does alone, Brown, standing proof supra, See at n. 2 constitute sufficient (referring jury drugs”). trial court's instruction de- his of such inferences, evaluating we must be Further, In assuming of the intent element. infer point, that an of a second conscious for con- requisite intent is a element that ence, may not be based permissible, to be possession, the before question structive inference, jury’s else the on another a sufficient permitting us whether becomes coming too close verdict risks possess of intent to contraband inference cases speculative, evidence-based. proximity presence view and knowledge prox and intent from inferring reasonable, and rehable contraband however, upon inferences imity, inferences statutory offense. consistent with Burnette, 600 A.2d at are rife. respect the reasonableness With that an inference permitted we inference, point is the first and obvious knew, about, and had the appellant experience personal all know from that we over, a and control to exercise dominion necessarily it so. that is not Whenever lay it that could feel where weapon train, bus, airplane, stand or sit a car оr mat, but refused to his feet under the floor example, necessity in close we are situation the “plain feel” extend to proximity belongings of others dominion of intent exercise inference opportunity have an to see them and permitted and control that we could, presum- ready them. We access to opinion does not “plain cases. The view” ours, next ably, reach over the seat premise rely on the inference or into overhead bins and under sight on the sense of is more reliable based knowledge proximity, That racks. touch, one based on the sense than do not mean that we intend hierarchy difficult to see how such our be- neighbor’s exercise control over justified in sensory impressions could be if to have longings even we continue —not example, the aroma of For abstract. belongings of those and to be better, as, marijuana good if not a is as during long close to them such drug than indicator train, trip. the fact that flight or Should appearance. Min green weed-like passen- the instant situation involves 525 & nick United ger of a car make a difference? We have (D.C.1992) (holding n. that smell of of a recognized that the confines” ] “closet marijuana alone is sufficient to establish allow certain inferences. vehicle). probable cause to search One Trains supra, 578 A.2d at 1162. possible reason for the Burnette court’s planes spaces, also confined how- are rejection predicate “plain of a feel” for an ever, and, if we were to limit the rule to might of intent be the view inference cars, of a taxi what about the require would infеr- such conclusion left who finds contraband on the seat In Bur- upon an inference. ence based special passenger? the former Is this recognized “the could nette we so, private vehicles? And if what rule for must have properly infer that makes the is it about such vehicles that mat, a large his on the felt placed feet inference a realistic one? Or does mat, up the and seen object, hard lifted presumed inference follow from a relation Burnette held gun.” 600 A.2d at 1083. ship among the of vehicle first two sufficed to establish the that this (e .g., may apply certain situations possession: knowl- prongs of constructive prior ability a rela passengers where the have gun of location of the edge hitchhik tionship) {e.g., but not to others over it. dominion and control exercise er)? County County “unwilling,” Ulster howev- See Court id. The court was Allen, er, that accept 442 U.S. 99 S.Ct. the “additional inference (1979) that fact dominion over the (holding L.Ed.2d 777 he exercise intended ” “ destiny,’ Id. at 1084 guide respondents gun [its] not ‘hitchhikers that —‘to ” T.M., supra, passengers’ supported (quoting infer other casual 5). explain its did not 1151 n. The court possession). gun ence of unwillingness. and, me, If the decisive, rationale was that A third reason for questioning the “plain inferring wisdom intent many feel” case involved one too possess proximity view and inferences, it is difficult an to see how by contraband sanctioning is that such inference of “plain intent from all feel” is adjudica an inference in the of an course speculative that more than the inference tion, we judicially altering risk the nature control, permitted by legislature. the offense created Burnette, which were drawn from three If in car close a to contraband in cumulative an inferences: inference that plain view is permit sufficient to an infer gun saw the drawn from an in- conclusively ence that establishes construc ference that he must have lifted the mat effectively impos tive we are from an drawn inference that must ing, a judicial interpretation, as matter of placed his feet on the mat and felt obligation an on innocent the bulge. Perhaps the felt court that the who discovers such contraband to af take “intent” requirement subjective has com- steps firmative to disembark or in some ponent that not should be based exclusive- (at undefined) point other this way, dis ly However, on objective factors. that re- tance herself or himself from offending apply offense, luсtance would equal statutory with force to substance. The howev er, substance, of a scheduled inference of view cases. contiguous presence with a scheduled reason, likely therefore, The more is that substance or to disassociate from unwillingness the court’s failure in Burnette to how, realistically, such substance. And extend “plain the inference of intent is a passenger in a car to do By so? feel” cases was due to the view that the nature, very a car space is a confined “plain view” already situation had been movement, engaged in which makes imme court, decisively determined impractical and, diate distancing possibly, that the rationale “should not be extended perilous. even nothing There is in the beyond Id. [that] at 1084. situation[ 33-541(a)(1) language § of D.C.Code words, In othеr the court slip refused to imply that legislature im intended to slope down engaged line- classic pose such a on duty pain of conviction drawing, albeit without explaining why the possession. There are statutes that create particular line was drawn at that presumption passengers in car are point. I agree with Burnette that it is possess deemed contraband in the prudent to restrict the inferences that Allen, see U.S. at 142 n. inferences, be drawn from other lest the (citing S.Ct. 2213 N.Y. Penal Law jury be in a engaged possible yet totally 265.15(3) 1967)), § (McKinney but our stat — imagined of the incident. ute presumption.9 does not contain such a —construct earlier, however, ruled, 8. As as-applied discussed the inferen- Court in an constitutional necessarily statute, tial Pandora's box had not been challenge to the that the rebuttable opened purported by language wide as statutory presumption was not unconstitu- "plain view" cases because the facts in tional because the facts the case were suffi- provided support those cases additional for an support finding cient to of constructive inference of intent. session. 442 U.S. at 99 S.Ct. 2213. case, occupants four of a car were con- County County 9. Unlike in Court Ulster possessing handguns victed of two loaded Allen, supra, the issue before us is not the open handbag were found half secreted constitutionality presumption of a created sixteen-year-old girl of a seated front legislature, judicially-creat- but whether a passenger seat. The Court reasoned that the statutory ed inference is consistent with analysis was no different if the event, than possession. any offense of it is been in view and case, accessible to the other Supreme noting worth three in the car. 442 U.S. at pass Court did not ality on the facial constitution- emphasized S.Ct. 2213. The Court an statutory presumption New of York’s person guns occupants in a car that contains additional fact that linked the three Rather, possesses guns. Supreme guns: the the to the police, who the drugs by im- were found dictionary of The meaning “possess” The control, awith flash- searching or the car plies a certain active dominion had been ... be an property stop that revealed light during “to have hold as traffic possession: ... take into leaning against master of one’s alcohol open of container gain or control of: make one’s own”. Upon seize further center of the back seat. the discovered two the officers investigation, DIC- THIRD INTERNATIONAL NEW WEBSTER’S (1986). judi- the TIONARY It exceeds the knee-level on ziplock bags at about commonly- stray function to cial and the the driver’s front console between “possession” in de- meaning understood seats, inch closer to about one passenger’s which, possession” as fining “constructive arrest, Following passenger’s the seat. recognized, proxy is “a for actual we have money or drugs no the officers discovered hand, pocket e.g., in possession, one’s Mel- police found on Rivas. The $286 Burnette, A.2d at 1084. lap.” supra, 600 driver, had that he gar, the who testified sanction, judicially- The inferences we as the job. at his Before money earned the the proxy, created should not overtake stopped by police, the сar was legislature intended. meaning on the speak car to to an individual left the sidewalk, passenger side leaving the front I full court For these reasons believe the claims open. government door helpfully review the entire issue and could solely on the inference rely to did not to reaffirm that intent decide whether proximity from the is a required exercise dominion and control and, if “odd” and “elu- of constructive also on Rivas’ element so, conscious- suggested whether view sive” behavior alone, contraband, standing are sufficient to the guilt. According govern- ness of satisfy requirement. the intent Intent ment, open, Rivas by leaving the car door always have to will almost be inferred return to the that he intended to indicated Although, from other circumstances. and, instead, began but did not do so conсurrence, Judge Farrell states in his stopped the away police the to walk when useful, objective the starting-off point is rejected argument, car. We have certainty desire for should not overshadow whether, other considering case fidelity purpose. to the statute’s Our inference, has government than law confirms that even without the benefit accused linking evidence presented inference, probative more evidence operation criminal sufficient ongoing presented support the can be—and is— requisite intent. supply evidence of cited, supra. of intent. See cases element an inference permit Burnette we did the defendant guilt where consciousness hand, from Turning apart case attempt elude “did not of intent the inference ..., away there was driving рresent- proximity, there no evidence suspicious on which previous behavior supported the conclusion ed at trial that they pulled time acting at the drugs. police were was connected to the that Rivas Moreover, passengers speeding, the other highly improbable halted for it is belonged [the to Jane Doe 16- anticipated loaded search and the risk of a the car respon- girl] solely year-old or that she weapons attempted to conceal their purse. in her As 16- sible for their The inference pocketbook in the front seat. company adult year-old girl in of three likely notion that surely than the more likely of the four to was the least men she property weapons were the sole these two, one, heavy hand- carrying let alone be girl. 16-year-old probable that she guns. more It far Thus, 163-64, con- S.Ct. 2213. Id. at her pocketknife found in relied on the statutory solely on the were not based victions necessary self-protection. any brassiere for particular as the facts presumption circumstances, it was not un- Under these all evidence that provided additional argue and for for her counsel to reasonable possessed guns. four the car was jury to infer that when car,10 over the ... there police was no evidence is that the flashlight had to use a they when any case, about searched the car. In appellant’s this activities earlier addition, in police testified that their night, ... and there evidence search was aided dome ‍​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​‌​‌​‌​​‌‌​​​‌‌‌​‌​‍light in [contraband] the front seat was course, police their car. Of police car’s аppellant’s plain in view either earlier in light dome turned Rivas had after the evening police or at the pulled time the exited the car to talk to someone on the jeep.” over the 600 A.2d at 1084. All sidewalk. inAs there here was no proof those elements are also in missing connecting the car other Burnette, this case. As there was no than his passenger in it at the relationship evidence here between time, connecting no evidence Rivas to drug Moreover, and the driver. distribution and no drugs evidence of case, though this even begun Rivas had to money person, on his in contrast away walk police when the stopped Melgar, found on $236 driver. car, he returned to the police car when the Therefore, but for the categorical lan- called to him. regard, this case is this guage Burnette and In re F.T.J. M.I.W., (D.C. like In re drugs permitted 1995), where we concluded that there was intent, to infer I would conclude insufficient evidence to establish conscious that the evidence was insufficient to of guilt ness because we look for more possess Rivas’ intent to ques- than “walking away,” id. at which However, tion. as I am bound to follow indicate merely an innocent desire to avoid cases, these I in affirming concur Rivas’ contact police. with the (citing See id. conviction. Smith v. United

(D.C.1989) (en banc)). M.I.W., inAs

moreover, here “there is no evidence that

[Rivas] had been in the car substan period

tial of time stopped], before it [was

or that the vehicle had a functional interior

light” that might possible have made it

see the drugs night, at least when the opened. door was Id. at 577. The case,

testimony M.I.W., in this inas Burnette, pulled the car was over to street for few minutes. As soon as the investigate Similarly, a traffic violation. lights, activated the cruiser’s the car case, police pulled this over the car be- complied moving curb. cause it had broken down and obstructed the

Case Details

Case Name: Rivas v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Aug 12, 1999

Citation: 734 A.2d 655

Docket Number: 97-CF-304, 97-CF-416

Court Abbreviation: D.C.