State v. Scott , 398 N.J. Super. 142 ( 2006 )

FUENTES, J.A.D.,

Dissenting.

My colleagues in the majority have concluded that the State presented sufficient evidence to establish that defendant actually or constructively possessed the cocaine found in the vehicle in which he was a passenger. I disagree and therefore dissent. In my view, the State failed to prove, beyond a reasonable doubt, the three essential elements of possession; namely that defendant (1) was aware of the presence of the package in which the cocaine was found in the car; (2) had knowledge of its character, that is that the package contained cocaine; and (3) intended or had the capacity to exercise control or dominion over the drugs.

The State’s evidence as to possession consisted entirely of the testimony of the two arresting officers. From the moment the officers first observed Parks driving the Jeep Cherokee in an erratic fashion and without headlights, there was no indication that defendant, as the front-seat passenger, acted in a suspicious manner. When the two officers approached the vehicle, Officer Arroyo from the driver’s side, and Officer Rodriguez from the passenger’s side, they did not see defendant engage in any action or movement that led them to conclude or even suspect that defendant was aware of the existence of any contraband.

In this context, the majority found that:

[T]he court’s decision to deny defendant’s motion for acquittal was also supported by the strong odor of raw marijuana coming from the Jeep; the testimony that it is very common for drug dealers to work together in teams; and the permissible inference that the occupants of the Jeep were trying to figure out where they could hide the drugs when they proceeded for several blocks to the Dunkin’ Donuts parking lot after being signaled by the police to pull over.

[398 N.J.Super. at 150, 940 A.2d at 304]

The record does not support these conclusions.

First, it is undisputed that both arresting officers testified to detecting the strong odor of “raw” marijuana when Parks rolled down the car-window. As the following excerpts from Arroyo’s direct testimony illustrate, however, the police were able to recognize this particular scent only because of their specialized training and experience.

Q. And the driver, also Mr. — known as Mr. Parks, then did he roll down the window?

Officer Arroyo: Yes.

Q. What, if anything, caught your attention next?

Officer Arroyo: I detected a strong odor of raw marijuana.

Q. Okay. Now — and how did you recognize it to be the odor of raw marijuana?

Officer Arroyo: Past training.

Q. Now you’re saying ‘raw marijuana,’ — you’re specifying ‘raw marijuana.’ What — is there a significance to the smell of raw marijuana as opposed to some other kind?

Officer Arroyo: Well, it’s not like — it’s not burnt. Not somebody that was just smoking mai-ijuana, a different smell.

Q. Okay. So are you, based on your experience, familiar with how raw marijuana smells versus how burnt marijuana smells?

Officer Arroyo: Yes.

Because defendant did not testify, there is no evidence from which a rational factfinder can conclude that defendant had the necessary training or experiences to have detected the distinct odor of raw marijuana.

Second, the drugs were found in a plastic package, beneath the driver’s seat. Even the officer who first discovered the package admitted that he noticed it only after pointing his flashlight directly at the location where it was hidden. Once detected, the officer was able to identify the package’s illicit nature only because of his training and experience as a veteran police officer.

Q. When you first flashed your light down there and you saw something down there, did you know in a split second that it was drugs or did it take you a couple of seconds to figure out what’s that shining between Mr. Parks’ feet?

A. It took me a little bit to actually focus on what it exactly was.

Q. So you couldn’t immediately identify it as CDS?

A. No, I couldn’t.

Q. Even though in your experience you’ve seen CDS a lot.

A. Yes, I have, sir.

Q. I think you’ve testified fifty to 100 different arrests?

A. About 100,150.

Q. And you’ve gone through the DEA training that we’ve talked about.

A. Yes, I have, sir.

There is no evidence that defendant had the necessary training or experiences to have detected the illicit nature of the package.

Finally, the majority’s conclusion that “it is very common for drug dealers to work together in teams” and that a permissible inference can be drawn that “the occupants of the Jeep were trying to figure out where they could hide the drugs when they proceeded for several blocks to the Dunkin’ Donuts parking lot after being signaled by the police to pull over,” is based on nothing more than rank speculation.

There is absolutely no evidence in the record to indicate that defendant and Parks were acting as “a team.” The police did not observe the two men engaged in any kind of furtive movements before the vehicle came to a stop, or at any time thereafter. The evidence before the jury can only suggest that defendant was nothing more than a mere passenger in a car driven by Parks. Further, no rational inference can be draw against defendant from Parks’ failure to pull over immediately in response to the police’s direction to do so. Defendant was not in control of the vehicle, and there is no evidence to indicate that he exerted any influence over its driver.

As we noted in State v. Whyte, and as my colleagues in the majority pointed out, “[i]t is clear that constructive possession cannot be based on mere presence at the place where contraband is located. There must be other circumstances or statements of defendant permitting the inference of defendant’s control of the contraband.” 265 N.J.Super. 518, 523, 628 A.2d 340 (App.Div.1992), aff'd o.b., 133 N.J. 481, 628 A.2d 287 (1993). The factual circumstances in Whyte are remarkably similar to those presented here.

The contraband here did not have a value of anything like the magnitude which apparently influenced the Court in Palacio¹. None of the passengers aeted in any way furtively or suspiciously. If we assume that the trip originated either in the Bronx or in Brooklyn, it was relatively brief in both distance and duration. We certainly could not, nor could a jury, speculate on its destination. There is no other fact here indicating the passengers’ knowledge that the van contained contraband, no less that they were co-possessors of it____ There is a world of difference between speculation and legitimate inference, and we conclude that the convictions here rested on speculation.

[Id. at 525, 628 A.2d 340.]

Here, defendant and the driver were apprehended while traveling through the streets of the City of Paterson. There is no indication that the trip originated from a long distance. As discussed, no evidence exists that would allow a rational jury to infer that defendant had knowledge of the contents of the package.

In this light, the majority’s conclusion that “the State presented ample evidence from which both physical and constructive possession of the cocaine could be inferred,” is not supported by the evidence presented, and is erroneous as a matter of law.

I therefore respectfully dissent.

1 In Palacio, the illicit drugs found in the vehicle had an estimated value of just under one million dollars. State v. Palacio, 111 N.J. 543, 545-46, 545 A.2d 764 (1988).