                                Illinois Official Reports

                                        Appellate Court



                           People v. Thomas, 2014 IL App (3d) 120676




Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   NORMAN E. THOMAS, Defendant-Appellant.



District & No.            Third District
                          Docket No. 3-12-0676

Filed                     October 27, 2014
Modified upon denial
of rehearing              January 8, 2015


Held                       The appellate court upheld defendant’s convictions for unlawful
(Note: This syllabus possession of a controlled substance and resisting or obstructing a
constitutes no part of the peace officer arising from a free-air sniff by a drug-sniffing dog
opinion of the court but following a traffic stop for failing to dim the bright lights on the car
has been prepared by the defendant owned but in which he was riding as a passenger, since
Reporter of Decisions defendant’s trial counsel was not ineffective in failing to raise the
for the convenience of meritless argument that the stop was unnecessarily prolonged by the
the reader.)               free-air sniff, after the valid traffic stop, defendant was not subjected
                           to a second seizure that was unlawful and an unlawful search when the
                           officer requested that the windows of the car be closed and the heater
                           be turned on in preparation for the free-air sniff, especially when
                           defendant had already been lawfully seized, and the “prepping”
                           procedure for the free-air sniff is not, according to Bartelt, a search in
                           violation of the fourth amendment, and although the evidence was
                           sufficient to sustain defendant’s possession conviction based on the
                           cocaine found in the area of the car where defendant was riding, his
                           conviction for resisting or obstructing a peace officer was reduced
                           from a felony to a misdemeanor and the cause was remanded for
                           resentencing due to the absence of any evidence that the officer was
                           injured.
     Decision Under           Appeal from the Circuit Court of Henry County, No. 08-CF-165; the
     Review                   Hon. Charles H. Stengel, Judge, presiding.



     Judgment                 Affirmed in part and modified in part; cause remanded.



     Counsel on               Michael J. Pelletier and Adrienne River, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Terence M. Patton, State’s Attorney, of Cambridge (Robert M.
                              Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of
                              counsel), for the People.



     Panel                    JUSTICE SCHMIDT delivered the judgment of the court, with
                              opinion.
                              Justice Holdridge concurred in the judgment and opinion.
                              Justice O’Brien concurred in the judgment.


                                               OPINION

¶1         After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession
       of a controlled substance (720 ILCS 570/402(c) (West 2008)) and resisting a peace officer
       (720 ILCS 5/31-1(a), (a-7) (West 2008)). The trial court sentenced defendant to 30 months’
       conditional discharge. Defendant appealed, and this court remanded for further proceedings.
       People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant filed motions
       for a new trial and to reconsider his amended motion to suppress evidence. Both motions were
       denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor
       resisting a peace officer; (2) the State failed to prove actual or constructive possession of
       cocaine; (3) he received ineffective assistance of trial counsel; (4) he was unlawfully seized as
       a result of the officer’s request to roll up the car windows and turn the heat on; and (5) the
       officer’s request regarding the windows and heat constituted an unlawful search. We affirm in
       part, modify in part, and remand for further proceedings.

¶2                                              FACTS
¶3        Defendant was charged by amended information with unlawful possession of a controlled
       substance (720 ILCS 570/402(c) (West 2008)), resisting or obstructing a peace officer (720
       ILCS 5/31-1(a), (a-7) (West 2008)), and obstructing justice (720 ILCS 5/31-4(a) (West 2008)).
       Defense counsel filed a motion to suppress evidence, arguing that excessive force had been
       used by the police. The motion stated that the car defendant was riding in was stopped by

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     Officer William Rivord for failing to dim its bright lights. Defendant and the driver, William
     Gordon, told Rivord that there was nothing illegal in the car and they did not consent to a
     search. Rivord conducted a free-air sniff with his canine unit. After the search, Rivord told
     defendant and Gordon that the dog had alerted and he was going to search the vehicle. The
     motion alleged that Rivord and Sergeant Pat Clapper used excessive force to obtain evidence
     from defendant after he exited the vehicle.
¶4       At the hearing on defendant’s motion, Gordon testified that on the night of May 3, 2008, he
     was driving defendant’s blue Lincoln when he was stopped by Rivord for failing to dim his
     bright lights. Defendant was a passenger in the vehicle and was unable to drive because he did
     not have a valid driver’s license. During the stop, Rivord instructed Gordon to start the Lincoln
     and roll the windows up while Rivord walked his dog around the car. Thereafter, Rivord told
     Gordon that the dog had alerted and ordered Gordon and defendant out of the car. As Rivord
     escorted Gordon out of the Lincoln, Gordon heard a second police officer yell at defendant.
     Gordon saw the second officer call for backup as he was choking defendant on the ground.
¶5       Defendant testified that on the date of the stop, he was riding in his Lincoln with Gordon
     when the vehicle was stopped by Rivord. Rivord asked for Gordon’s driver’s license, vehicle
     registration, and proof of insurance. After obtaining the documents, Rivord instructed
     defendant and Gordon to wait in the car while he returned to his patrol car. Thereafter, Rivord
     handed the documents back, and he asked Gordon to roll up the windows and turn on the heat
     because he was going to walk his dog around the car. Following the free-air sniff, Rivord
     directed defendant and Gordon to exit the car. As defendant got out of the car, two prescription
     Vicodin pills fell off of his coat and onto the ground. Defendant picked up the pills and put
     them in his mouth. At that point, Clapper forced defendant to the ground, ordered defendant to
     open his mouth, and choked defendant. Defendant opened his mouth and did not resist the
     officer. Eventually, defendant lost consciousness and awoke the following day in a hospital.
¶6       On cross-examination, defendant stated that he had swallowed the Vicodin pills that fell on
     the ground, and he did not recall Clapper’s order to step away from a baggie that fell to the
     ground as he exited the vehicle. Defendant reported that he dropped a piece of plastic that
     contained the Vicodin pills, but contended that he did not have a baggie. Defendant did not
     take the pills earlier in the stop because he forgot about them while he was looking for the
     documents that Rivord had requested.
¶7       Rivord testified that he stopped a blue Lincoln at approximately 11:30 p.m. on May 3,
     2008, for driving with its bright lights on. Initially, Rivord approached the driver’s side
     window and asked for Gordon’s driver’s license and proof of insurance. After receiving the
     documents, Rivord advised Gordon and defendant that he was a canine officer and asked if
     there was anything in the Lincoln that he needed to know about. Defendant and Gordon replied
     in the negative, and Rivord said that he was going to conduct a free-air sniff. Rivord asked
     Gordon to roll up the vehicle windows and turn the heat on. Rivord “immediately, before doing
     anything else, got [his] dog out and walked the dog around the car.” The dog alerted on
     defendant’s side of the Lincoln by the passenger door. Rivord returned the dog to his patrol car
     and reapproached the Lincoln. Sometime after the stop began, Clapper arrived at the scene.
¶8       Following the dog alert, Rivord approached the driver’s side door, and Clapper walked up
     to the passenger door. Rivord informed defendant and Gordon of the dog alert and directed
     them to exit the vehicle. As Rivord and Gordon reached the back corner of the Lincoln, Rivord
     saw defendant get out of the car, and he heard Clapper command defendant to leave something

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       on the ground. Defendant bent over, picked something up, and placed it in his mouth. Clapper
       told Rivord that defendant had put a baggie containing a white substance in his mouth, and he
       grabbed defendant. Rivord ran to Clapper’s assistance, and the officers and defendant fell to
       the ground in a struggle. Defendant did not obey the officers’ commands to place his hands
       behind his back or to open his mouth. Rivord saw what appeared to be chewed-up pieces of
       crack on defendant’s lips and tongue. Eventually, the officers restrained defendant and put
       pieces of the substance from defendant’s mouth in an evidence bag and bagged pieces of the
       substance that were lying on the ground.
¶9          On cross-examination, Rivord stated that he began the free-air sniff five to seven minutes
       into the stop. Rivord said that the substance in defendant’s mouth did not look like a
       prescription pill and, based on his training, he thought the substance was chewed-up pieces of
       crack cocaine. During a search of the vehicle, officers discovered cocaine between the driver
       and passenger seats.
¶ 10        The trial court found that Rivord was a credible witness, there was probable cause for the
       free-air sniff, and there was no delay. The trial court denied defendant’s motion to suppress.
¶ 11        On June 16, 2009, the court dismissed the obstructing justice charge. Following a
       stipulated bench trial, defendant was found guilty of unlawful possession of a controlled
       substance and resisting a peace officer. The trial court sentenced defendant to 30 months’
       conditional discharge, and defendant appealed.
¶ 12        In the first appeal, we held that the parties and the court intended that the stipulated
       proceedings were not to operate as a guilty plea. People v. Thomas, 2011 IL App (3d)
       090886-U. As a result, we remanded the cause to the trial court for admonishments pursuant to
       Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001).
¶ 13        Following the remand, defendant filed a motion for new trial and to reconsider his
       amended motion to suppress. At the reconsideration hearing, Rivord testified that he stopped
       the vehicle defendant was riding in for failing to dim its headlights in the face of oncoming
       traffic. Defendant testified, in response, that there was no oncoming traffic. The trial court
       found Rivord’s testimony more credible and denied the motion to suppress. Defendant
       appeals.

¶ 14                                              ANALYSIS
¶ 15       On appeal, defendant argues that: (1) trial counsel rendered ineffective assistance when he
       failed to argue that the free-air sniff unlawfully prolonged the traffic stop; (2) the evidence was
       insufficient to sustain his conviction of resisting a peace officer and possession of a controlled
       substance; (3) the officer’s request to roll up the windows and turn on the heater prior to the
       dog sniff was an unlawful seizure; and (4) the dog-sniff search was an unreasonable search of
       the vehicle’s interior.

¶ 16                                      I. Motion to Suppress
¶ 17      Defendant argues that reversal of the trial court’s ruling on his motion to suppress is
       warranted for two reasons: (1) he received ineffective assistance of counsel; or (2) he was
       unlawfully seized and searched as result of the officer’s orders to roll up the vehicle windows
       and turn on the heater. In reviewing a trial court’s ruling on a motion to suppress evidence, we
       apply a two-part standard of review. People v. Cosby, 231 Ill. 2d 262, 271 (2008). A trial

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       court’s findings of fact will only be reversed where they are against the manifest weight of the
       evidence. People v. Hackett, 2012 IL 111781, ¶ 18. We review de novo the trial court’s
       ultimate legal ruling as to whether suppression is warranted. Id.

¶ 18                                 A. Ineffective Assistance of Counsel
¶ 19        Defendant argues that counsel was ineffective for failing to challenge the length of the
       stop, which was unnecessarily prolonged by the free-air sniff.
¶ 20        To prevail on an ineffective assistance of counsel claim, defendant must show that: (1)
       counsel’s representation fell below an objective standard of reasonableness; and (2) the
       deficient performance so prejudiced defendant as to deny him a fair trial. Strickland v.
       Washington, 466 U.S. 668 (1984); People v. Bew, 228 Ill. 2d 122, 127 (2008). Specifically,
       defendant must prove that counsel’s performance was objectively unreasonable under
       prevailing professional norms and there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been different. People v.
       Hughes, 2012 IL 112817, ¶ 44.
¶ 21        The federal and state constitutions protect citizens from unreasonable searches and
       seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Stopping a vehicle and detaining
       its occupants constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979); People v.
       Harris, 228 Ill. 2d 222 (2008). An initially lawful seizure can violate the fourth amendment if
       its manner of execution unreasonably infringes interests protected by the Constitution. Illinois
       v. Caballes, 543 U.S. 405, 407 (2005); Harris, 228 Ill. 2d at 235. For example, a traffic stop
       that is justified by the interest in issuing a warning ticket to the driver can become unlawful if it
       is “prolonged beyond the time reasonably required to complete that mission.” Caballes, 543
       U.S. at 407; see also Harris, 228 Ill. 2d at 235. “Brevity is an important factor in determining
       whether a detention was reasonable, but the court should also consider whether the police acted
       diligently in pursuing the investigation.” People v. Welling, 324 Ill. App. 3d 594, 602 (2001).
¶ 22        In the instant case, defense counsel did not argue that Rivord unlawfully prolonged the stop
       by conducting a free-air sniff. The trial evidence showed that Rivord initiated the stop because
       Gordon did not dim his bright lights. Rivord approached the vehicle, asked Gordon for the
       necessary documentation, and stated that he was a canine officer and was going to conduct a
       free-air sniff. The free-air sniff began between five and seven minutes into the stop. While
       there is no talismanic period of time beyond which an initially justified traffic stop becomes an
       unreasonable seizure (People v. Koutsakis, 272 Ill. App. 3d 159, 163 (1995)), a number of
       cases hold that approximately 10 to 12 minutes is the average amount of time for a traffic stop
       with warning tickets. See People v. Canizalez-Cardena, 2012 IL App (4th) 110720 (free-air
       sniff 7 to 8 minutes into a traffic stop did not prolong the stop and a stop of 10 to 12 minutes to
       issue a warning ticket was reasonable); People v. Kats, 2012 IL App (3d) 100683 (nine-minute
       stop to issue a warning ticket was sufficiently brief); People v. Staley, 334 Ill. App. 3d 358
       (2002) (18-minute traffic stop that included confirming the status of defendant’s driver’s
       license and license plate registration and issuing two traffic citations was not unduly long). In
       light of this record, we agree with the trial court that the stop at issue was not unreasonably
       prolonged.
¶ 23        However, defendant argues that the duration of the seizure is not conclusive of whether the
       stop was prolonged. Rather, defendant contends that the stop was unreasonably prolonged by
       the officer’s deviation from writing a warning ticket or citation for the headlight infraction to

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       conduct the free-air sniff. See People v. McQuown, 407 Ill. App. 3d 1138 (2011) (stop was
       unduly prolonged where officer did not ask for a canine unit until 13 minutes after the initial
       purpose of the stop had ended, and canine unit did not arrive for an additional 25 minutes);
       People v. Al Burei, 404 Ill. App. 3d 558 (2010) (stop of vehicle was unreasonably prolonged by
       officer’s continued questions after the initial purpose of the stop had been satisfied); People v.
       Baldwin, 388 Ill. App. 3d 1028 (2009) (traffic stop was deemed unreasonably prolonged where
       the stopping officer had to call a second officer to bring a drug dog).
¶ 24        In contrast to defendant’s cited cases, Rivord had a drug-sniffing dog in his patrol vehicle
       and conducted the free-air sniff without delay. Rivord did not pose additional questions to
       delay defendant and avoided any undue delay as he was already in possession of the dog.
       Additionally, no additional suspicion or probable cause was required to conduct a free-air sniff
       because the search did not infringe on defendant’s privacy interests and only exposed the
       presence of contraband items. Caballes, 543 U.S. 405.
¶ 25        Defendant has not shown that defense counsel’s omission of a prolonged stop argument
       altered the outcome of the proceeding. Therefore, defense counsel was not ineffective for
       failing to advance a meritless argument.

¶ 26                                        B. Search and Seizure
¶ 27                                              1. Seizure
¶ 28       Defendant argues that if we do not reverse the denial of his motion to suppress on
       ineffective assistance grounds, remand is necessary to determine if defendant was
       unreasonably seized as a result of the officer’s request to roll up the car windows and turn on
       the heat. Initially, we note that defendant was lawfully seized at the time the vehicle he was
       riding in was stopped for a traffic violation. See Brendlin v. California, 551 U.S. 249 (2007)
       (passengers in a stopped vehicle are lawfully seized at the time the vehicle is stopped by the
       police). Until the traffic stop was complete, defendant was not free to leave and therefore could
       not be subject to a second, simultaneous seizure. See People v. Ortiz, 317 Ill. App. 3d 212, 221
       (2000) (investigative stop was complete after officer returned defendant’s driver’s license and
       issued a warning).
¶ 29       In his petition for rehearing, defendant takes issue with our ruling that ordering the
       defendant to roll up his windows and turn on the fan was not a second seizure. In support, he
       cites the dissent in People v. Bartelt, 241 Ill. 2d 217, 245-46 (2011) (Freeman, J, dissenting).
       We find that the issue of whether the relevant police conduct was a “second seizure” or a
       “search,” is a semantic one. Was it a search or a second seizure? Pick one; it does not matter.
       We find that the notion of a “second seizure” of someone who is already seized somewhat
       confusing. Had the police, after ordering defendant to roll up his windows and turn on the fan,
       then ordered the driver to hit the trunk release button, would that be a “third seizure” or a
       “double-secret seizure?” As set forth below, we believe that the setup procedure at issue
       constituted a search and not a seizure. The bottom line is the same.

¶ 30                                           2. Search
¶ 31       Defendant also contends that he was subject to an illegal search when he was ordered to
       roll up the windows and turn on the heater prior to the dog sniff.



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¶ 32       As a matter of first impression, in People v. Bartelt, 241 Ill. 2d 217 (2011), our supreme
       court held that the setup procedure of ordering a vehicle occupant to roll up her windows and
       turn the blowers on high before an officer conducted a dog sniff of the exterior of the vehicle
       was not an unreasonable search. In support of its decision, the court analogized the setup to the
       suitcase “prepping” procedure affirmed by the Fifth Circuit in United States v. Viera, 644 F.2d
       509, 510 (5th Cir. 1981). In Viera, Drug Enforcement Administration agents “prepped” the
       defendants’ suitcases before a dog sniff by pressing them lightly with their hands and slowly
       circulating the air in order to procure a scent from the bags. Viera, 644 F.2d at 510. The Fifth
       Circuit reasoned that the “prepping” procedure was not a search in violation of the fourth
       amendment because a light press of the hands along the outside of the suitcases was not so
       intrusive as to require a different result. Id. In relying on Viera, our supreme noted that
       “ordering defendant to roll up her windows and turn the blowers on high before conducting the
       dog sniff was not sufficiently intrusive” as to offend the fourth amendment. Bartelt, 241 Ill. 2d
       at 231.
¶ 33       The Bartelt decision requires that we affirm the trial court’s ruling on the motion to
       suppress; however, we believe that Bartelt will ultimately be overruled by the United States
       Supreme Court. As these setup procedures become more common, the United States Supreme
       Court will undoubtedly grant certiorari in a similar case. We acknowledge that one has a lesser
       expectation of privacy in a motor vehicle because its function is transportation and it seldom
       serves as one’s residence or as the repository of personal effects. Cardwell v. Lewis, 417 U.S.
       583, 590 (1974). A car has little capacity for escaping public scrutiny; it travels public
       thoroughfares where its occupants and its contents are in plain view. See Cardwell, 417 U.S. at
       590; People v. DeRusha, 74 Ill. App. 3d 641, 644 (1979). The occupant of the vehicle does not
       have a reasonable expectation of privacy against police scraping paint samples from the
       vehicle’s exterior (Cardwell, 417 U.S. at 591); having a drug dog sniff a vehicle’s exterior
       (Caballes, 543 U.S. at 409); or electronically monitoring a vehicle’s movements on a public
       street (United States v. Knotts, 460 U.S. 276, 282 (1983)).
¶ 34       The situation presented here is inherently different from the situations previously
       addressed by the United States Supreme Court. This is not a “free-air” sniff of the exterior of a
       vehicle. Rather, this is forcing a vehicle’s occupant to make available to officers, without a
       warrant, something that is normally on the interior of the car and afforded at least some fourth
       amendment protection. Although a dog sniff is not typically classified as a search, it does not
       mean that the use of a drug-sniffing dog cannot eventually become a search, and an unlawful
       one at that. See Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013) (holding that an
       officer’s use of a drug-sniffing dog on front porch of a home was a trespassory invasion of the
       curtilage which constituted a search for fourth amendment purposes). It is not the dog sniff that
       offends the fourth amendment. It is the police ordering the driver to roll up the windows and
       activate the fan that crosses the line. This “setup” procedure is analogous to an officer ordering
       the occupant to empty his pockets and throw the contents out the window onto the ground. The
       occupant cooperates, and among his personal effects is a small bag containing contraband. The
       contraband, now in plain view, prompts the officer to place the occupant under arrest. This is
       not, nor could it ever be, the state of fourth amendment jurisprudence. While plain view and
       plain smell are established exceptions to the warrant requirement, ordering a vehicle occupant
       to participate in an assisted sniff of the interior of his vehicle transforms the free-air sniff into a



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       search governed by the fourth amendment. However, until the setup procedure employed here
       and in Bartelt is overruled, we must affirm.

¶ 35                                 II. Sufficiency of the Evidence
¶ 36       Defendant argues that the State failed to prove beyond a reasonable doubt that (1) in
       resisting arrest, he caused injury to a police officer, and (2) he had actual or constructive
       possession of the cocaine found between the driver and passenger seats. In a challenge to the
       sufficiency of the evidence, we must determine whether, after viewing the evidence in the light
       most favorable to the prosecution, any rational trier of fact could have found the essential
       elements of the offense beyond a reasonable doubt. People v. Baskerville, 2012 IL 111056,
       ¶ 31.

¶ 37                                         A. Resisting Arrest
¶ 38       Defendant asks this court to reduce his resisting arrest conviction to a misdemeanor
       because defendant did not stipulate to evidence that a police officer had been injured. The State
       responds that defendant stipulated that the evidence was sufficient to convict and, therefore, he
       cannot argue that the evidence was insufficient to prove his guilt of felony level resisting.
       However, in defendant’s first appeal, we held that the stipulated bench trial was not tantamount
       to a guilty plea, as neither the parties nor the court intended it to function as such. People v.
       Thomas, 2011 IL App (3d) 090886-U. Thus, under the law of the case doctrine, we hold that
       defendant is not proscribed from arguing he was not proved guilty of felony-level resisting.
       People v. Tenner, 206 Ill. 2d 381, 395 (2002).
¶ 39       To prove defendant guilty of felony-level resisting arrest, the State had to prove that
       defendant knowingly resisted a peace officer in the performance of an authorized act and
       proximately caused injury to the officer. 720 ILCS 5/31-1(a), (a-7) (West 2008). Here,
       defendant stipulated to the evidence presented at the preliminary hearing and the motion to
       suppress. We have reviewed the record, and find no evidence presented during either of the
       hearings that the officer was injured. Therefore, we reduce defendant’s Class 4 felony
       conviction to a Class A misdemeanor and remand the matter for resentencing. 720 ILCS
       5/31-1(a), (a-7) (West 2008); Ill. S. Ct. R. 615(b)(3).

¶ 40                                    B. Possession of Cocaine
¶ 41       Defendant argues that the State did not prove beyond a reasonable doubt that he had actual
       or constructive possession of the cocaine found on the front seat of the car.
¶ 42       To convict a defendant of unlawful possession of a controlled substance, the State must
       prove beyond a reasonable doubt that defendant had knowledge of the presence of the
       controlled substance and that he had immediate and exclusive possession or control of the
       substance. People v. Woods, 214 Ill. 2d 455, 466 (2005). “Actual possession is the exercise by
       the defendant of present personal dominion over the illicit material and exists when a person
       exercises immediate and exclusive dominion or control over the illicit material.” People v.
       Givens, 237 Ill. 2d 311, 335 (2010). “Constructive possession exists without actual personal
       present dominion over a controlled substance, but with an intent and capability to maintain
       control and dominion.” People v. Frieberg, 147 Ill. 2d 326, 361 (1992). Constructive
       possession may exist where there is no physical possession if a defendant has an intent and

                                                   -8-
       capacity to maintain control and dominion over the contraband. People v. Drake, 288 Ill. App.
       3d 963, 969 (1997).
¶ 43       In the instant case, police found cocaine between the driver and passenger seats. Defendant
       owned the vehicle. Defendant testified that he was a passenger at the time and, during the stop,
       he went through the glove compartment to find the documents that Rivord had requested. After
       the free-air sniff, Rivord approached the driver’s side, and Clapper approached the passenger’s
       side. Thereafter, an altercation occurred on the passenger’s side when defendant refused to spit
       out a white substance that he had placed in his mouth. Viewed in the light most favorable to the
       State, this evidence was sufficient for the trier of fact to reasonably infer that defendant had
       constructive possession of the cocaine.


¶ 44                                         CONCLUSION
¶ 45       For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed in
       part and modified in part, and the cause is remanded for further proceedings.

¶ 46      Affirmed in part and modified in part; cause remanded.




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