State v. Sequin , 9 Haw. App. 551 ( 1993 )

CONCURRING AND DISSENTING OPINION OF

HEEN, J.

I concur in the majority’s disposition of the appeal of Alvin Mark Sequin (Alvin). However, I respectfully dissent from the majority’s disposition of the appeal of Glenn Jordan Sequin (Glenn). In my view, the circumstances known to the arresting officer were not sufficient to support a reasonable belief that Glenn was either in constructive possession of the handgun in this case or was an accomplice in Alvin’s possession. With all due regard for the plethora of guns in our community and the multitude of gun-related crimes being committed, it is nevertheless my view that the law requires that probable cause be grounded on more than the evidence produced in this case.

The question is whether it was reasonable for the arresting officer to infer from the fact that he found a gun under Alvin’s seat that Glenn knew the gun was there and therefore was either in constructive possession of the gun or an accomplice in Alvin’s possession.

In the absence of direct evidence that a passenger in a car where the police found a gun knew that the gun was there, other-courts have used the passenger’s close proximity to the gun to show constructive possession. Braxton v. State, 350 So. 2d 753 (Ala. Cr. App. 1977), and Illinois v. Thompson, 215 Ill. App. 3d 514, 575 N.E.2d 256 (1991), cited by the majority, illustrate the rationale of those courts. In Braxton, the gun was located under an armrest situated on the front seat between the driver and the passenger. The Alabama court held there was probable cause to believe that the passenger had constructive possession of the gun. In Thompson, the gun was found under the front passenger seat. There was contradictory evidence as to where on the rear seat the appellant in that case was seated; the appellant maintained that he was seated on the passenger’s side of the rear seat. The Illinois court held that regardless of the location of the appellant in the rear seat, the fact that the gun was in such “proximity to the accused as to lie within easy reach so that the weapon is readily available for use” was sufficient to establish probable cause for appellant’s arrest. As I will discuss later, Braxton is a clearer case than Thompson. Nevertheless, Braxton is distinguishable from the instant case. Neither case supports the inference of knowledge here.

I am not convinced that proximity gives such ready access from which one may infer constructive possession in all cases. For example, anyone who has attempted to retrieve something from under the front seat of a car while seated in the back seat can attest to the fact that, unless the object is located under the rear of the front seat, the object is not within easy reach and, therefore, is not readily available for use. For that same passenger to retrieve that same object from under the forward portion of the front seat is even more difficult, even in a small car like a Ford Pinto. Indeed, the smaller car, with its tighter quarters, might even make the attempt more difficult.

I am, of course, aware that we are dealing here only with the question of probable cause. It would for that reason be easy to say that even though the evidence in this case might not be sufficient to convict Glenn of possession of the handgun in question, there was enough to support a reasonable belief that Glenn was in constructive possession of the handgun and, therefore, his arrest was legal. However, I would require more than was shown in this case.

We must bear in mind that probable cause is more than a phrase developed to support an arrest; it is an important curb on excessive police intrusion into a person’s liberty. Without more evidence than was produced in this case, the police are at liberty to arrest with impunity all passengers in a car where a gun was found, regardless of the circumstances of their presence or their actual knowledge of the gun’s presence. In my view, that affords the police too much latitude and improperly places the burden on every such person to prove his innocence.

Although the case of State v. Brighter, 61 Haw. 99, 595 P.2d 1072 (1979), deals with the presence of narcotics in a car and the inference as to possession that may be drawn therefrom, I believe that the decision in that case is illustrative of the kind of evidence that should be required in the case at hand and other cases like it. In Brighter, the defendant was charged with the possession of marijuana found in a shopping bag on the back seat of the car that defendant was driving, after he had been stopped for a traffic violation. At trial, the defendant denied any knowledge of the marijuana.

The prosecution in Brighter relied on Hawai'i Revised Statutes (HRS) §712 — 1251(1) (1976) to prove possession. The statute provided (and still provides) that, with certain exceptions not pertinent here, the presence of a dangerous, detrimental, or harmful drug in a motor vehicle is prima facie evidence of knowing possession of such drug by everyone occupying the vehicle when the drug was found.

In Brighter, however, the supreme court limited the broad reach of the statute. The court stated that the statute created a permissive inference of possession which may only be authorized in accordance with due process “if there is a natural and rational evidentiary relation between the facts proven and the ultimate fact which the statute authorizes to be found.” Id. 61 Haw. at 103, 595 P.2d at 1075. The supreme court held that the statutory inference could only be applied when the quantity of drugs found in the car was sufficiently large as to constitute dealership quantity. The rationale of Brighter is that the occupants of a car can be presumed to be in possession of drugs found in a vehicle when the quantity of the drugs makes it extremely unlikely that the occupants were unaware of its presence. Id. 61 Haw. at 108, 595 P.2d at 1078. The rationale of the court in Brighter is applicable here.

In my view, due process requires that there be something in the circumstances under which a handgun is found in a car by a police officer which forms a natural and rational relation to a belief that all the passengers in the car were in possession of the handgun because it is extremely unlikely that they, or at least the person charged with constructive possession, did not know the gun was there. Thus, if the evidence in this case showed that the gun was a large one or could easily be seen from Glenn’s vantage point in the car, or that the gun was situated so that it in fact was within Glenn’s easy reach, I would readily agree that one could reasonably infer that Glenn was not likely to be unaware of it, and, therefore, he was in constructive possession of the gun. However, there is no such evidence in this case. We simply do not know where under the front seat the gun was located. I deem it significant that from his vantage point the officer saw only the butt end of the handgun. He had to go to the driver’s side to confirm that it was a handgun. I find it difficult to make the necessary rational connection between those facts and the fact of Glenn’s knowledge.

Braxton is an example of the application of the principle I would apply from Brighter. However, Braxton is distinguishable from this case, because the location of the gun under the armrest between the driver and the passenger rationally leads to the inference that it was likely that the passenger knew the gun was there. The evidence in Thompson is similar to the evidence in this case and, in my view, does not support the inference of constructive possession.

The inference that Glenn was Alvin’s accomplice in the possession of the gun is equally as tenuous as the inference of knowledge discussed above. There is simply no natural or rational connection between the facts proven and the fact sought to be proved, i.e., that Glenn was Alvin’s accomplice.

I would hold that Glenn was illegally arrested and the evidence of the gun that he threw away should have been suppressed.