STATE V. REED, 1998-NMSC-030, 125 N.M. 552, 964 P.2d 113
STATE OF NEW MEXICO,
Plaintiff-Respondent,
vs.
PRENTICE REED, Defendant-Petitioner.
SUPREME COURT OF NEW MEXICO
1998-NMSC-030, 125 N.M. 552, 964 P.2d 113
ORIGINAL PROCEEDING ON CERTIORARI.
Ralph W. Gallini, District Judge.
As Corrected October 22, 1998.
Dorothy C. Sanchez, Albuquerque, NM, for
Petitioner.
Hon. Tom Udall, Attorney General, Max
Shepherd, Assistant Attorney General, Santa Fe, NM, for Respondent.
DAN A. McKINNON, III, Justice. WE CONCUR:
GENE E. FRANCHINI, Chief Justice, PAMELA B. MINZNER, Justice, PATRICIO M.
SERNA, Justice, JOSEPH F. BACA, Justice (dissenting).
{1} This case presents
three questions: (1) whether a trace amount of cocaine detected in a cellophane
cigarette wrapper carried in one's pocket proves knowledge that the substance
was cocaine; (2) whether a law enforcement officer who wants to search a
vehicle based on a hunch that the vehicle contains illegal drugs may validly
stop the vehicle based on personal observations of violations of the Motor
Vehicle Code, NMSA 1978, §
66-1-1 to -8-140 (1978, as amended through 1994);
and (3) whether, based only on a hunch, an officer may broaden the scope of a
routine traffic stop to a narcotics investigation by obtaining consent to
search.
{2} With respect to
the first issue, we hold that a trace amount is not sufficient evidence to
prove knowledge. Consequently, Prentice Reed's conviction for possession of
cocaine is reversed and the charge dismissed. Since our disposition results in
a dismissal of the possession charge, we do not address the other interesting
questions raised in this appeal.
Schlieter v. Carlos, 108 N.M. 507, 510,
775 P.2d 709, 712 (1989) ("It is an enduring principle of constitutional
jurisprudence that courts will avoid deciding constitutional questions unless
required to do so.")
{3} On June 5, 1994,
at approximately 1:00 a.m. in Hobbs, New Mexico, Eddie Taylor was driving a
vehicle in which Prentice Reed was the sole passenger. Officer Durham
{*553} of the Hobbs Police Department observed
a broken rear license-plate light and saw that Taylor was not wearing a seat
belt, each a petty misdemeanor under the Motor Vehicle Code.
See NMSA
1978, §
66-3-805(C) (1978) (rear license-plate light); § NMSA 1978, 66-7-372(A)
(1989) (seat belt). He stopped the vehicle.
{4} Prior to making
the stop, Durham did not receive any information indicating that this vehicle
or its occupants might be involved in criminal activity. There was also no
indication that either Taylor or Reed had been drinking alcohol or was under
the influence of illegal drugs.
{5} While in uniform,
Durham was operating his police cruiser, and was presumably armed. After
stopping the vehicle, he asked Taylor for his driver's license and proof of
insurance.
1 Durham could not recall whether or
not Taylor produced insurance documents. At some point, Reed asked Taylor for a
pack of cigarettes, which Taylor retrieved from a hole in the dashboard and
gave to Reed. Durham saw the hole in the dashboard with cigarette packs in it;
however, at no time did he observe any contraband in plain view.
{6} When Taylor failed
to produce his license, Durham ran a computer check on its status. While
waiting for the results, Durham asked Taylor for permission to search the
vehicle, and Taylor consented. Durham then instructed Taylor and Reed to step out
and stand at the rear of the vehicle with Officer Smith (who was also in
uniform and presumably armed) while Durham conducted the search. He found no
contraband in the vehicle.
{7} Durham then asked
Taylor and Reed "if they would mind emptying their pockets."
According to Durham, "they did so voluntarily." Durham testified that
at no time did he fear for his safety and that neither Taylor nor Reed acted
suspiciously. When Reed emptied his pockets, he handed Durham a cellophane
cigarette wrapper and the cigarette pack. The wrapper was later found to have a
trace amount of cocaine on its inside surface.
{8} When Reed handed
Durham the cigarette wrapper, Durham could not see anything until he held it up
to a streetlight, at which time he observed a trace amount of a "white
powdery substance" on the inside surface. He did not recall asking Reed if
he could identify the substance; nor did he administer a drug test of any kind.
A field test of the substance later indicated the presence of cocaine. The
detective who conducted the field test characterized the amount as a
"trace."
{9} A chemist from the
State crime laboratory, who was qualified as an expert witness, testified lab
tests confirmed that the residue was cocaine, and the amount in the wrapper was
so small that he was unable to weigh it without destroying it. He estimated the
weight to be approximately two milligrams, which he equated to about five or
six grains of salt. To see the trace amount, one would have to turn the wrapper
under a good light or a strong flashlight. The chemist opined that at one time
the wrapper contained a larger quantity of crack cocaine and that the residue
tested had rubbed off or remained in the wrapper after other cocaine had been
removed from the wrapper.
{10} After placing
Reed under arrest, Durham cited Taylor for no driver's license, but did not
cite him for any other vehicle violations. There is no indication in the record
that Durham warned Taylor of the other violations prior to letting him go.
{11} Reed was charged
with possession of cocaine, in violation of NMSA 1978, §
30-31-23 (1990). Reed
unsuccessfully moved for a directed verdict, contending there was no evidence
that he
knew the substance was cocaine, an essential element of the
offense of possession,
see § 30-31-23(A), and the jury found Reed guilty
of cocaine possession. The trial court sentenced Reed to eighteen months in
prison, to be followed by a one-year parole period.
{12} {*554} In the Court of Appeals, Reed urged
three grounds for reversal, two of which are before this Court.
2 First, he contended the trial court
erred in denying his motion to suppress because the stop was invalid under
Guzman.
In a memorandum opinion, the Court of Appeals disagreed, noting that
United
States v. Botero-Ospina, 71 F.3d 783, 785, and
Whren v. United States,
517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), permitted pretextual
traffic stops, if justified by observation of traffic violations. Secondly,
Reed argued for dismissal of the possession charge because there was no
evidence that he knew the substance in the wrapper was cocaine. Two members of
the three-judge panel found the evidence sufficient to support the verdict.
Then-Chief Judge Apodaca dissented, agreeing with Reed that there was
insufficient evidence to prove the essential element of knowledge.
See State
v. Reed, No. 16,257, slip op. at 1 (N.M. Ct. App. Sept. 13, 1996) (Apodaca,
C.J., concurring in part and dissenting in part);
see also §
30-31-23(A); UJI
14-3102 NMRA 1978.
{13} We granted Reed's
petition for certiorari and now reverse the conviction and dismiss the
possession charge.
DISCUSSION: SUFFICIENCY OF EVIDENCE.
{14} Although we must
accept "all reasonable, permissible inferences" in favor of the
verdict,
State v. Duran, 107 N.M. 603, 605,
762 P.2d 890, 892 (1988), we
must also "ensure that, indeed, a rational jury
could have found
beyond a reasonable doubt the essential facts required for a conviction,"
State
v. Garcia, 114 N.M. 269, 274,
837 P.2d 862, 867 (1992). To affirm Reed's
conviction, we must "explain how the jury might have reasoned that
Defendant had both knowledge and possession."
State v. Sizemore,
115 N.M. 753, 758,
858 P.2d 420, 425 .
{15} Reed argues that
mere possession of a wrapper with only a trace amount of cocaine in it is not a
sufficient basis to prove knowledge. In the absence of some corroboration, such
as drug paraphernalia, suspicious or intoxicated behavior, positive urine
sample, flight, or an admission, no rational jury could infer that he knew the
wrapper contained cocaine. The State contends that
the jury could reasonably infer that the cocaine was
in the wrapper because someone had taken the wrapper off a package of
cigarettes, used that wrapper to store or transport a quantity of crack cocaine
that had subsequently been consumed or disposed of, and that the wrapper was
therefore not the one from the package of cigarettes Mr. Taylor had just given
[Reed].
The State apparently reasons that Reed either used the
wrapper for one of these illicit purposes or knew that it had been so used by
someone else. Reed counters that this inferential chain, in the absence of
evidence to support its links, is speculation, and therefore, insufficient to
support his conviction. We agree with Reed.
{16} There was no
evidence to indicate Reed knew the wrapper had a white residue in it or that
the residue was cocaine. The amount of cocaine in the wrapper was not
immediately apparent to the human eye. Reed did not flee or otherwise act in a
suspicious manner.
Cf. Sizemore, 115 N.M. at 757, 858 P.2d at 424
(listing cases permitting inference of guilt from unexplained flight). Durham
found no drug paraphernalia or other drugs in the vehicle or on Reed's person.
Cf.
State v. Wood, 117 N.M. 682, 686,
875 P.2d 1113, 1117 (trace amount of
cocaine and drug paraphernalia in defendant's pocket sufficed to prove
knowledge that substance was cocaine). Nor was there an admission by Reed that
might support an inference of knowledge. Finally, there was no evidence of
intoxication or otherwise suspicious behavior by Reed or Taylor. As Judge
Apodaca stated in his dissent, "the record is absolutely void of any facts
that would directly or inferentially give rise to a finding" that Reed
knew the substance in the wrapper was cocaine.
Reed, No. 16,257, slip
op. at 2 (Apodaca, C.J., concurring in part and dissenting in part).
{17} The State argues
that Reed's possession of a wrapper with cocaine residue inside provides
"corroboration [of Reed's knowledge] in the same way that finding
{*555} trace amounts of a controlled substance
on other types of drug paraphernalia has been found to corroborate a
defendant's knowledge." Reed counters that a cellophane cigarette wrapper
is used to protect the freshness of a pack of cigarettes and therefore has a
"legitimate common purpose."
Lord v. State, 616 So. 2d 1065,
1066 (Fla. Dist. Ct. App. 1993) (adopting the legitimate common purpose rule
and noting that microscopic amounts of cocaine can be found on much of the
currency circulating in south Florida). The State argues that, far from having
a legitimate common purpose, cellophane cigarette wrappers "are commonly
used to transport and store controlled substances and particularly crack
cocaine." However, the State presented no evidence at trial to support
this assertion; therefore, it will not be considered on appeal.
See Fugere
v. State Taxation and Revenue Dep't, 120 N.M. 29, 32,
897 P.2d 216, 219
(matters not of record will not be considered on appeal).
{18} There is no
corroborating evidence that Reed knew the wrapper contained cocaine. Since we
cannot articulate a coherent rationale for finding that Reed had such
knowledge, we reverse his conviction and dismiss the possession charge.
{19} We hold that
there was insufficient evidence to support Reed's conviction, and therefore the
cocaine possession charge is dismissed.
{20} Reversed and
remanded for dismissal.
DAN A. McKINNON, III, Justice
GENE E. FRANCHINI, Chief Justice
PAMELA B. MINZNER, Justice
PATRICIO M. SERNA, Justice
JOSEPH F. BACA, Justice (dissenting)
BACA, Justice (Dissenting)
{22} I must
respectfully dissent from the majority's decision to reverse Defendant Reed's
conviction. Sufficient evidence in the record clearly permitted a rational
juror to find guilt beyond a reasonable doubt. In reviewing sufficiency of the
evidence, this Court views the evidence in the light most favorable to the
trial court's ruling, drawing all reasonable inferences from the facts to
support the verdict.
See State v. Apodaca,
118 N.M. 762, 766,
887 P.2d
756, 760 (1994);
State v. Bankert,
117 N.M. 614, 618,
875 P.2d 370, 374
(1994). The ultimate question is whether the evidence is legally sufficient to
support a finding of all the elements of the crime.
See State v. Becerra,
112 N.M. 604, 607,
817 P.2d 1246, 1249 . A court should grant a directed
verdict only when no reasonable inferences or circumstances present a jury
question.
State v. Aranda,
94 N.M. 784, 786,
617 P.2d 173, 175 (Ct. App.
1980).
{23} To find Defendant
guilty of possession of a controlled substance, here cocaine, the State had to
prove beyond a reasonable doubt that: (1) Defendant had cocaine in his
possession, (2) Defendant knew it was cocaine, and (3) the crime occurred in
New Mexico. UJI
14-3102 NMRA 1998. With regard to the second element, the
majority concludes that there is insufficient evidence to prove that Reed knowingly
possessed the cocaine. The majority focuses on the amount of cocaine found in
the cellophane wrapper, contending that only a residue of cocaine was present,
so little that it was not readily visible to the human eye. From this
questionable observation, the majority displaces the jury verdict and concludes
that nothing in the record suggests that Reed knew about the cocaine. I
disagree.
{24} Reed had only a
small amount of cocaine on his person. However, possession of even a trace of
illegal drugs will support a conviction.
See State v. Wood,
117 N.M.
682, 686,
875 P.2d 1113, 1117 (finding that knowledge of possession may be
inferred where a defendant had a syringe on his person that tested positive for
.0001 grams of contraband). Here, the record clearly permitted the jury to
infer that Reed knowingly possessed cocaine. Contrary to the majority's
suggestion, the cocaine residue was not invisible. The arresting officer
testified that he saw the residue in the bag when Reed handed it to him. (T.
4A/0237-0277). The prosecutor asked the officer directly whether he could see
the white residue, to which the officer responded "Yes, ma'am."
{*556} Id. The prosecutor also asked
the officer specifically, "There was enough that you could see it?"
Id.
Again, the officer responded affirmatively, noting that enough cocaine existed
to run three separate field and lab tests and still leave some visible cocaine
in the wrapper.
Id. If the officer could see the cocaine, the jury was
free to infer that Reed also could see it and that Reed knew the cocaine was
there when he put the wrapper in his pocket.
See Wood, 117 N.M. at 686,
875 P.2d at 1117;
Arranda, 94 N.M. at 786, 617 P.2d at 175 (holding that
a jury may consider circumstantial evidence, from which inferences may be
drawn, when it decides whether the burden of proof has been met).
{25} Apart from the
arguments addressing the amount of cocaine, the majority also states that no
other evidence in the record corroborates that Reed knew of the cocaine's
existence. For example, the majority contends that Reed would have fled, acted
nervously, or not handed over the wrapper if he knew that it had cocaine in it.
However, the arresting officer noted in his testimony that, when stopped by
officers, arrestees commonly hand over illicit drugs upon request without
fleeing or exhibiting noticeable changes in their behavior. (T. 4A/0237-0277).
Thus, the lack of some noticeable response or behavioral reaction to the
officer's request for Reed to empty his pockets provides no guidance in this
inquiry.
{26} The majority also
discounts the cellophane wrapper itself as a piece of corroborating evidence.
It reasons that the wrapper cannot be considered a piece of drug paraphernalia
since it has a common purpose -- carrying cigarettes. However, the majority
cannot discount all drug paraphernalia used for carrying or preparing drugs
merely because the object might have a common use. Syringes, spoons, and
cellophane wrappers, to name just a few, all have common uses. That does not
mean they are not commonly used as drug paraphernalia.
{27} Furthermore, the
jury may consider the training and experience of the arresting officer. On
numerous occasions, the prosecutor premised her questions to the officer with
the phrase, "On the basis of your training and experience."
Id.
The jury is permitted to consider that the officer was particularly interested
in examining the cellophane wrapper. They are also free to deduce that his
training and experience led him particularly to suspect such a wrapper as a
transport case for drugs. Hence, from the officer's experience and his actions
in this case, the jury could infer the corroborating nature of the cellophane
wrapper as drug paraphernalia. A jury is permitted to put two and two together.
The majority decision denies the jury its power to make such inferences from
the evidence in the record, and it incorrectly takes this case out of the
jury's hands.
{28} For these
reasons, I respectfully DISSENT.
1
Durham apparently did not ask for registration, presumably because he knew that
the vehicle was registered under the name of the individual he had previously
arrested on drug charges.
2
His ineffective assistance of counsel claim is not made here.