Criminal Practice – Search & Seizure – Car Carrier – Crossing Center & Fog Lines – Reasonable Suspicion – Constructive Possession – Marijuana in Car Trunk

State v. Hudson. (Lawyers Weekly No. 10-07-0805, 17 pp.) (Cheri Beasley, J.) Appealed from Wilson County Superior Court. (William C. Griffin Jr., J.) N.C. App.

Holding: An officer had a reasonable suspicion to stop defendant after the officer followed defendant for two miles and saw defendant’s rig cross the center line twice and the fog line twice.

We affirm the trial court’s denial of defendant’s motions to suppress and dismiss.

The state also presented sufficient evidence to go to the jury on the issue of constructive possession. An inference that defendant had knowledge of the presence of the marijuana can be drawn from defendant’s power to control the Mercedes in which the marijuana was found.

The Mercedes had been under defendant’s exclusive control since it was loaded onto his car carrier in Miami two days before his arrest. Deputy Sheriff Joshua Bissette testified that defendant had keys to every car on the carrier and removed the cars from the carrier himself so they could be searched.

Defendant’s possession of the Mercedes was not exclusive in the sense that he did not own it; he picked it up from an individual named “Eddie.” Nevertheless, the state presented other evidence from which an inference of defendant’s knowledge could be drawn.

Defendant displayed suspicious behavior when stopped by Deputy Sheriff Jimmy Renfrow by exiting the truck with his back to the deputy and hands up, unusual activity for someone who was merely transporting cars and committed a minor traffic offense.

Bissette testified that defendant was “nervous acting,” hands shaking when he handed over his information, and sweating despite 40-degree weather. Bissette “could see [defendant’s] carotid artery pulsating out of his neck” as Renfrow climbed into the cab of the truck.

The suspect bill of lading referencing a contact person named only “Eddie” and lacking specific addresses for both pick-up and drop-off locations further contributed to the suspicious circumstances. Most suspiciously, defendant had fully functional keys for each car on the carrier except the Mercedes. Bissette testified that defendant gave the officers a “fob” key to the Mercedes, but the key regularly hidden inside this type of valet key was missing, which prevented its user from opening the truck which housed 7.5 pounds of marijuana.

Defendant argues any inference of knowledge and constructive possession was negated by his lack of proximity to a car owned by another person, being shipped under a bill of lading, where he had a key to the vehicle but not the trunk containing the bag in which marijuana was found.

We conclude, however, the specific facts taken in combination, which need not rule out every hypothesis of innocence, and viewed in a light most favorable to the state, are sufficient to prove other incriminating circumstances and constitute substantial evidence of constructive possession. Thus, we hold the state presented sufficient evidence on the element of possession to overcome defendant’s motion to dismiss.

Defendant also disputes that the state offered sufficient evidence that he “kept or maintained” the vehicle. He claims “there is no evidence whatsoever that the possession of marijuana in the vehicle occurred over a duration of time or that [he] used the vehicle on any prior occasion to keep or sell controlled substances.” The state’s evidence, however, directly contradicts this argument.

The bill of lading for the Mercedes in which the marijuana was discovered shows that defendant picked up the vehicle from Eddie on Oct. 21, 2008. Defendant maintained possession as the authorized bailee of the vehicle continuously and without variation for two days before being pulled over on the evening of Oct. 23, 2008. Having stopped to rest overnight on at least one occasion during that time period, he retained control and disposition over the vehicle and then resumed his planned route with the car carrier.

Defendant’s possession of the Mercedes spanned several days, including stops and resumptions of the New York-bound trip from Miami, and thus indisputably occurred over a duration of time. In light of the foregoing, the state presented substantial evidence that defendant was transporting the Mercedes to keep or sell the marijuana contained therein and, therefore, maintained the vehicle for that purpose from the time he loaded it onto his car carrier until he was stopped by law enforcement two days later. Accordingly, we conclude that the trial court did not err in denying defendant’s motion to dismiss.

No error.