                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1303
                                Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN WESLEY REED,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Ida County, Edward A. Jacobson,

Judge.



       A defendant appeals his convictions for possession with intent to deliver

(cocaine), possession with intent to deliver (marijuana), and failure to affix a drug

tax stamp. REVERSED.




       Mark C. Smith, State Appellate Defender, and Nan N. Jennisch, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

      John Wesley Reed appeals his convictions following a bench trial for

possession with intent to deliver (cocaine), second offense, in violation of Iowa

Code sections 124.401(1)(c)(2)(b) (2017) and 124.411; possession with intent to

deliver (marijuana), second offense, in violation of sections 124.401(1)(d) and

124.411; and failure to affix a drug tax stamp, in violation of sections 453B.1 and

453B.12. On appeal, Reed argues the odor of burnt marijuana did not establish

probable cause for a warrantless search of the trunk of the car. He also argues

there is insufficient evidence to support his conviction because the State failed to

prove he possessed the drugs found in the trunk.

      I. Background Facts and Proceedings.

      On February 22, 2017 at 3:30 a.m., Deputy Alex Ehlers pulled over the

vehicle Reed was driving for traveling sixty-seven miles per hour in a fifty-five

miles-per-hour zone. Deputy Ehlers approached the passenger side and spoke to

Michael Taylor, the owner of the vehicle.       Deputy Ehlers observed Taylor’s

bloodshot, watery eyes. Deputy Ehlers asked if there was marijuana in the car.

Both Taylor and Reed denied there was marijuana in the car. Deputy Ehlers

checked Reed’s license, discovered Reed was driving with a suspended license,

and asked Reed to step out of the vehicle. Deputy Ehlers again inquired whether

there was marijuana in the car, and Reed again denied its presence. When Deputy

Ehlers asked for consent to search the vehicle, Reed told him Taylor owned the

car and Taylor did not want Deputy Ehlers to search it.

      Deputy Ehlers approached Taylor and asked for his license. Deputy Ehlers

again asked whether there was marijuana in the car. Deputy Ehlers requested
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consent to search the vehicle, and Taylor replied the officer should just give Reed

a ticket. Deputy Ehlers told Taylor he could smell burnt marijuana in the car.

       Deputy Ehlers patted down Reed for weapons, asked Taylor to step out of

the vehicle, and patted down Taylor as well. Deputy Ehlers then began searching

the vehicle. He first searched the front passenger seat and then the back seat

area. Next, Deputy Ehlers began searching the trunk. Deputy Ehlers found a

coffee can with a hidden compartment which contained some coffee but smelled

like marijuana. Deputy Ehlers opened luggage found in the trunk, which Taylor

stated was his. Inside, the deputy found $7225 in cash. Deputy Ehlers then called

for Sheriff Wade Harriman and Deputy Andrew Schillington to join him and to bring

the drug dog.

       Sheriff Harriman, Deputy Shillington, and the drug dog arrived. The drug

dog alerted on the trunk and the back seat of the vehicle. A gray duffel bag,

belonging to Reed, was opened. In it, the officers located a black backpack with

a small amount of loose marijuana on the bottom. Deputy Ehlers observed a digital

scale and some plastic bags in the trunk, along with a large wrapped box, which

Taylor stated was a nerf toy for his nephew. Deputy Ehlers opened the wrapped

box in the trunk and found eight vacuum-sealed bags of marijuana, totaling 1398

grams, and one bag of cocaine, weighing 69 grams.

       Reed was arrested and charged with possession with intent to deliver

(cocaine), possession with intent to deliver (marijuana), and failure to affix a drug

tax stamp for the drugs found in the trunk of Taylor’s car. In April, Reed filed a

motion to suppress evidence, arguing the vehicle was improperly searched without

a warrant. In May, a combined suppression hearing and bench trial was held. The
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district court overruled the motion to suppress, finding probable cause and exigent

circumstances justified the warrantless search of the vehicle. The district court

found probable cause existed because Reed and Taylor were on an indirect route,

the officer smelled marijuana, Reed had a previous drug conviction in Iowa, Reed

and Taylor had varied stories of why they were in Des Moines, and based on Reed

and Taylor’s demeanor during the stop. In a separate, summary order the district

court found Reed guilty on all counts. Reed filed a motion in arrest of judgment

and for new trial in August, arguing there was insufficient evidence he knowingly

possessed the drugs to support the conviction.          The State resisted, arguing

constructive possession was proved. The court denied the motion verbally at

sentencing without ruling on the issue of constructive possession and sentenced

Reed. Reed appeals.

       II. Standard of Review.

       “Challenges to the sufficiency of evidence are reviewed for errors at law.”

State v. Keopasaeuth, 645 N.W.2d 637, 639–40 (Iowa 2002). When reviewing

challenges to sufficiency of the evidence, “courts consider all of the record

evidence viewed in the light most favorable to the State, including all reasonable

inferences that may be fairly drawn from the evidence. We will uphold a verdict if

substantial record evidence supports it.” State v. Romer, 832 N.W.2d 169, 174

(Iowa 2013) (citation omitted). “Evidence is substantial when ‘a rational trier of fact

could conceivably find the defendant guilty beyond a reasonable doubt.’” State v.

Howse, 875 N.W.2d 684, 688 (Iowa 2016) (citation omitted). If the “evidence only

raises ‘suspicion, speculation, or conjecture’, it is not substantial evidence.” Id.

(citation omitted).
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       III. Analysis.

       We turn to Reed’s argument the evidence of constructive possession was

insufficient since that claim is dispositive.    Reed argues the State presented

insufficient evidence to establish he possessed the marijuana and cocaine found

in the trunk of the car belonging to Taylor.         To support the convictions of

possession with intent to deliver (cocaine), possession with intent to deliver

(marijuana), and failure to affix a drug tax stamp to those substances, the State

must prove Reed possessed the drugs found in the car.               See Iowa Code

§§ 124.401(1) (“[I]t is unlawful for any person to manufacture, deliver, or possess

with the intent to manufacture or deliver.”), 453B.12(2) (“[A] dealer distributing,

offering to sell, or possessing taxable substances without affixing the appropriate

stamps, labels, or other official indicia is guilty of a class “D” felony.”). The State

must prove Reed “exercised dominion and control over the contraband, had

knowledge of the contraband’s presence, and had knowledge the material was a

narcotic.” State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008).

       “The location in which the substance is found guides our determination of

possession.” State v. Dewitt, 811 N.W.2d 460, 474 (Iowa 2012). Possession can

be either actual or constructive. Id. Because no substances were found on Reed’s

person to indicate actual possession, we must next consider whether there was

sufficient evidence of constructive possession. See id.

       To prove constructive possession, the State must show Reed “had

knowledge of the controlled substance as well as the authority or right to control

it.” State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013). “If the premises on which

such substances are found are in the exclusive possession of the accused,
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knowledge of their presence on such premises coupled with his ability to maintain

control over such substances may be inferred.” State v. Reeves, 209 N.W.2d 18,

23 (Iowa 1973). However, when the vehicle or premises are jointly occupied,

constructive possession must be established by other proof. State v. Bash, 670

N.W.2d 135, 138 (Iowa 2003). “Proof of opportunity of access to the place where

contraband is found will not, without more, support a finding of unlawful

possession.” Id. at 137. “The existence of constructive possession turns on the

peculiar facts of each case.” State v. Reed, 875 N.W.2d 693, 705 (Iowa 2016).

“The evidence of guilt must generate more than mere suspicion, speculation, or

conjecture.” Id.

       Proof of possession could include “incriminating statements made by the

defendant, incriminating actions of the defendant upon the police’s discovery of

the controlled substance among or near the defendant’s personal belongings, the

defendant’s fingerprints on the packages containing the controlled substance, and

any other circumstances linking the defendant to the controlled substance.” Bash,

670 N.W.2d at 138.

       The State argues Reed made incriminating statements to the law

enforcement officers during the stop. Reed stated they were headed straight home

to Colorado after visiting Des Moines, but he was driving on a highway in Ida

County, an indirect route between Des Moines and Colorado. The State argues

Reed and Taylor made inconsistent statements regarding their activities in Des

Moines during their two- to three-day stay. They stated they were visiting relatives,

picking up cash from a sale of a vehicle, and getting a vehicle repaired as part of

the trucking business. The State argues Reed and Taylor claimed to be friends,
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but Reed could not answer several questions about Taylor. The video of the stop

shows Deputy Ehlers and Reed discussing the friendship. Reed knew Taylor was

a caretaker for veterans, but he did not know whether Taylor was a veteran himself.

Reed did not know whether Taylor had a criminal history. The State argues it was

incriminating for Reed to respond to a request to search the car by stating, “[Taylor]

don’t want you to search it” and, “It’s not my car, I can’t give you permission to do

that.” Reed declined to mention his recent conviction for possession of marijuana

in Dallas County when talking about his criminal history.

       The State also argues Reed’s body language was incriminating: when

asked if there were any drugs in the car, Reed shook his head from side to side,

but also up and down once. Cf. State v. Carter, 696 N.W.2d 31, 40–41 (Iowa 2005)

(finding possession when defendant did not stop the vehicle immediately, but

continued driving, rummaged around in the car, struck the curb while looking for

something in the center console, and gave a false name when confronted by

officers, but noting that “furtive movements alone cannot support a finding of

constructive possession”).      We disagree with the district court’s apparent

conclusion that the factors cited by the State as incriminating are sufficient to

support a finding of constructive possession.

       The controlled substance was not found among or near Reed’s personal

belongings; Reed’s belongings were found in the back seat and the drugs were

found in the trunk of the car. The controlled substances packaging was not tested

to determine whether Reed’s fingerprints were on the packages.

              When the “premises” involve a motor vehicle, a court may
       consider these additional factors: (1) was the contraband in plain
       view, (2) was it with the accused’s personal effects, (3) was it found
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       on the same side of the car seat as the accused or immediately next
       to him, (4) was the accused the owner of the vehicle, and (5) was
       there suspicious activity by the accused.

Id. at 39. Even if some factors are present, the court must determine whether all

of the facts and circumstances taken together create a reasonable inference that

the person knew of the presence of the controlled substance and had control and

dominion over it. Id. at 39–40.

       Here, the contraband was not in plain view. It was not near Reed’s personal

belongings but separated in the trunk. Reed did not own the vehicle. Reed

maintained a calm and respectful demeanor throughout the police interaction, in

contrast to Taylor, who protested the search of the vehicle. Cf. State v. Henderson,

696 N.W.2d 5, 9 (Iowa 2005) (drugs were found on premises occupied by the

defendant and her guest; defendant was belligerent towards police whereas guest

was cooperative, acted like she had nothing to hide, and denied the drugs were

hers; such disparate reactions supported permissible inference that the drugs

belonged to the defendant).       Unlike the defendant in Carter, who “began

rummaging to the right of him” as he evaded police, Reed took no action to exert

control over the drugs. Carter, 696 N.W.2d at 40.

       Reed owned the gray duffel bag in the back seat of the car, containing a

backpack with 0.4 grams of loose marijuana in the bottom. The State argues we

can infer from the marijuana found in the bottom of the backpack that Reed

transported the eight sealed packages discovered in the trunk. Deputies opined

the amount was consistent with the backpack having stored a larger stash and

inconsistent with personal use. However, Reed is a resident of Colorado, a state

that allows residents to purchase up to 28 grams of marijuana at a time for personal
                                         9

recreational use. See Colo. Const. art. XVIII, § 16. It is speculation to conclude

the small amount of residue is from transporting a large amount of marijuana rather

than from other sources.

        This case is analogous to State v. Cashen, where our supreme court

determined “proximity alone is insufficient to establish constructive possession.”

666 N.W.2d 566, 572 (Iowa 2003). In Cashen, a baggie of marijuana was found

just behind the defendant and “off to the left of his hip.” Id. The court nonetheless

determined this position was insufficient to establish guilt where Cashen was not

the owner of the car, the drugs were not in plain view, the marijuana was not found

with Cashen’s personal effects, Cashen’s acts were not of an incriminating nature,

and Cashen’s girlfriend, who was sitting on his lap, claimed ownership. Id. at 572–

73.

        We find the State presented insufficient evidence to support Reed’s

possession of the marijuana and cocaine found in the trunk. Therefore, we reverse

the judgments and sentence for possession with intent to deliver (cocaine),

possession with intent to deliver (marijuana), and failure to affix a drug tax stamp.

In light of our conclusion, we need not address the suppression issue raised by

Reed.

        REVERSED.
