subject: Virginia Marijuana Possession Intent Distribute Smell Traffic Driving Fairfax County Richmond Beach Prince William Loudoun Lynchburg Fredericksburg [print this page] Virginia Marijuana Possession Intent Distribute Smell Traffic Driving Fairfax County Richmond Beach Prince William Loudoun Lynchburg Fredericksburg
Ervin v. Commonwealth, Va. Ct. App. June 22, 2010
The officers stopped a vehicle being driven by appellant after the officers observed a traffic violation. There were no other occupants in the car. As the officers approached the driver's side of the vehicle, they smelled a strong odor of marijuana coming from the car. There was no evidence that the odor detected by the officers was coming from appellant's person. Based on the smell of marijuana emanating from the vehicle, the officers took appellant into custody and searched the vehicle for evidence of marijuana and for the vehicle's registration. Officer Rad removed the vehicle's ignition key and used the key to unlock the glove compartment. In the glove compartment, the officers immediately observed two Ziploc bags containing what was later determined to be marijuana. One of the bags held ten small, knotted plastic bag corners of fresh marijuana. The other bag contained thirteen knotted plastic bag corners of fresh marijuana. The officers did not recover any smoking devices or other drug paraphernalia from appellant or the vehicle. After denying appellant's motions to strike the evidence as insufficient, the trial court found appellant guilty of possession with intent to distribute marijuana and driving on a suspended license.
To sustain a conviction for possession of marijuana, "[t]he Commonwealth was required to prove that [appellant] 'intentionally and consciously possessed' the [marijuana], either actually or constructively, with knowledge of its nature and character." Proof of constructive possession necessarily rests on circumstantial evidence; thus, 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence. 'The law is well established that possession of the means to exercise dominion [and] control over an item gives the possessor dominion [and] control over the item [itself.]'" Wright v. Commonwealth, 53 Va. App. 266, 274, 670 S.E.2d 772, 776 (2009) (quoting Bell v. Commonwealth, 21 Va. App. 693, 698-99, 467 S.E.2d 289, 291-92 (1996)). Thus, evidence of appellant's possession of the key that controlled access to the interior of the glove compartment supports the trial court's conclusion that the marijuana baggies, which were immediately visible upon opening the glove compartment, were subject to appellant's dominion and control. However, the Commonwealth was required to prove both that appellant exercised dominion and control over the item, as shown by his possession of the keys to the locked glove compartment, and that he was aware of the presence and character of the marijuana.
"[W]hile proximity is a factor to be considered along with other evidence, mere proximity [to marijuana] is not sufficient to prove possession." The evidence established that when the officers approached the driver's side of the vehicle, they smelled a strong odor of marijuana coming from the car. There was no evidence that the odor detected by the officers was coming from appellant's person, that appellant appeared intoxicated, that appellant showed any physical signs of having recently used marijuana, or that appellant possessed any drugs or drug paraphernalia on his person. The record does not establish whether the officers smelled fresh marijuana or burnt marijuana. However, the trial judge interpreted the evidence as suggesting the odor was that of burnt marijuana: "The only testimony is [appellant] used the car and he was in the car when marijuana was being used, at least I think you can infer that from the evidence . . . ." (Emphasis added). 5 There is no indication that the odor was that of fresh marijuana, which might indicate that appellant had at least reason to suspect the vehicle contained fresh marijuana. Instead, the trial court found that the odor coming from the vehicle was that of burnt marijuana, suggesting someone was smoking marijuana before the officers approached. In reaching its conclusion, the trial court more particularly stated, "Perhaps other people were in the car, perhaps other people knew about the marijuana, [but] that doesn't provide a defense for this odor." In fact, appellant was under no obligation to provide a defense for this odor. Rather, the Commonwealth was required to prove constructive possession of the marijuana in its case-in-chief. As more fully discussed herein, there was no direct evidence of appellant's constructive possession of the marijuana in the glove compartment, and the circumstantial evidence was simply insufficient as a matter of law. Evidence of the smell of burnt marijuana simply does not provide a nexus from which the trial court could conclude appellant knew of the fresh marijuana in the glove compartment. The Commonwealth of Virginia notes that appellant was the sole person with means to access the glove compartment containing the marijuana. While this establishes appellant's dominion and control over the vehicle and the items located therein. In this case, the key that unlocked the glove compartment was the same key that was necessary to operate the vehicle. Put simply, the fact that appellant possessed that key does not logically lead to the inference that appellant knew of the glove compartment's contents.
Given the factual determinations made by the trial court, the evidence is at best in equipoise. Even assuming the trial judge determined appellant was familiar with the smell of marijuana, based on appellant's equivocal testimony regarding that fact, there was no evidence presented by the Commonwealth suggesting appellant's familiarity with that smell proved that he had smoked marijuana in the vehicle, or knew the vehicle contained fresh marijuana at the time he was driving the vehicle. Further, the record contains no other facts or circumstances to support a finding of guilt. As appellant correctly asserts, the Commonwealth presented no evidence to suggest appellant made any motion toward the glove compartment as police stopped the vehicle, or that appellant engaged in any other behavior that would indicate he knew there were drugs in the car. There was no evidence that appellant appeared nervous, and in fact, the officers testified that appellant was entirely cooperative throughout the traffic stop.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
