Attorney for Appellant Attorneys for Appellee
Teresa D. Harper Steve Carter
Bloomington, Indiana Attorney General of Indiana
Nandita G. Shepherd
Deputy Attorney General
Appeal from the Marion Superior Court, No. 49G20-0007-CF-119343
The Honorable William E. Young, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0109-CR-413
June 17, 2004
Searching the home officers seized among other things over 126 grams of cocaine
and cocaine residue, over 273 grams of marijuana, $5,000 in cash, and a
set of digital scales. Because the location of the confiscated items, along
with the circumstances of their discovery, is critical to our analysis we discuss
these matters in greater detail below. For the moment, however, suffice it
to say that Gee was charged with dealing in cocaine, as a Class
A felony; possession of cocaine, as a Class C felony; possession of cocaine
and a firearm, a Class C felony; dealing in marijuana, as a Class
D felony; and possession of marijuana, as a Class D felony. Except
for the possession of cocaine and a firearm charge, for which he was
found not guilty, after a jury trial Gee was convicted as charged and
ultimately sentenced to a total executed term of twenty years imprisonment. On
review, Gee challenged the sufficiency of the evidence. In a Memorandum Decision
the Court of Appeals affirmed the judgment of the trial court.
Gee v. State, No. 49A05-0109-CR-413 (Ind. Ct. App. Sept. 3, 2002). We
now grant transfer and reverse the trial courts judgment.
However, the law takes a different view when applying the intent prong of
constructive possession. When a defendants possession of the premises on which drugs
are found is not exclusive, then the inference of intent to maintain dominion
and control over the drugs must be supported by additional circumstances pointing to
the defendants knowledge of the nature of the controlled substances and their presence.
Lampkins, 682 N.E.2d at 1275. The additional circumstances have been shown
by various means: (1) incriminating statements made by the defendant, (2) attempted flight
or furtive gestures, (3) location of substances like drugs in settings that suggest
manufacturing, (4) proximity of the contraband to the defendant, (5) location of the
contraband within the defendants plain view, and (6) the mingling of the contraband
with other items owned by the defendant. Henderson v. State, 715 N.E.2d
833, 836 (Ind. 1999).
In this case Gee does not contest that he held a possessory interest
in the Mutz Court residence. Thus he does not challenge the inference
that he had the capability to maintain dominion and control of the drugs
found in the home. He argues however that there were no additional
circumstances demonstrating that he had knowledge of the drugs or their presence.
The Court of Appeals disagreed noting that the drugs were located in a
common area of the home that Gee shared with his cousin Lewis and
that Gees personal effects were in close proximity to the drugs. The
court concluded that [c]ontraband being in plain view and in close proximity to
other items associated with the defendant are two additional circumstances by which constructive
possession of contraband may be proven where the defendants control over the premises
on which the contraband is found is non-exclusive. Slip op. at 4-5.
We have no quarrel with this general proposition of law. However
we disagree with our colleagues that the proposition is applicable to the facts
of this case.
The record shows that the drugs in this case were found in the
basement laundry room of the Mutz Court residence in cabinets and cans and
closed stuff. R. at 117, 159. More specifically Jeffrey Krider, one
of the officers on the scene who testified at trial, said that in
conducting the search he first went to the laundry room area to a
Id. at 74. The following exchange then occurred:
[Deputy Prosecutor]: And did you open the cabinet door?
[Officer Krider]: Yes.
[Deputy Prosecutor]: What did you see when you opened the cabinet door?
[Officer Krider]: There was a cigar box, a couple of bags of baggies, I
think a can of tar remover.
[Deputy Prosecutor]: Did you take anything out?
[Officer Krider]: The cigar box.
[Deputy Prosecutor]: Did you open it?
[Officer Krider]: Yes I did.
[Deputy Prosecutor]: And what did you observe inside of it?
[Officer Krider]: There was a baggie containing a white powdery substance.
[Deputy Prosecutor]: What did you believe that to be at the time?
[Officer Krider]: Based on my training and experience as a Police Officer Cocaine.
Id. at 75. The other on-the-scene officer testifying at trial, Sgt. Brian
Roach, also began his search [i]n the laundry room, which is just off
the basement. Id. at 159. Sgt. Roach testified that Officer Krider
pointed out to him the cabinet and cigar box which he removed.
The following relevant exchange occurred:
[Deputy Prosecutor]: Once you removed the cigar box what else did you find?
[Sgt. Roach]: It was a tin can, maybe a fifty can, [that] you see
during Christmas season, it was underneath the cigar box, I opened it
up and found digital scales then there was also a sandwich bag, and
inside the sandwich bag was a yellowish rocklike substance which I thought was
Id. at 162-63. Sgt. Roach also testified that the scales were concealed
in a black folded leather case. Id. After Sgt. Roach testified
about his search of the cabinets, the following exchange occurred:
[Deputy Prosecutor]: All right where did you move to next?
[Sgt. Roach]: I dont know specifically next, but eventually I found my way to
below the cabinets, there were some five gallon buckets like paint buckets stacked,
the one on top was either red or orange, I opened it up
and inside it was a larger bag of what I believed to be
marijuana a green leafy substance.
Id. at 165-66. When asked what else he found in the basement
laundry room, Sgt. Roach testified, [O]n top of those same cabinets was a
gray plastic bag upon opening it, there were a glass jar, measuring cup,
a spoon and a pots [sic]. They all had a white powdery
residue. Those items are commonly used to turn powdered cocaine or cocaine
hydrochloride into Crack cocaine, or Cocaine base. Id. at 168.
The record makes clear that none of the drugs and paraphernalia seized by
the officers was in a location where it could be plainly viewed.
With the exception of the cookware with cocaine residue, all items were hidden
out of view inside of closed containers. And even with respect to
the cookware, it was found inside a bag which an officer opened to
determine the contents. Further, the incriminating character of the contraband was not
See Lampkins, 685 N.E.2d at 700 (noting that the principle
of plain view is invoked only where the incriminating character of the contraband
is immediately apparent and declaring that a closed Tylenol bottle does not constitute
contraband in plain view).
We also observe that the plain view additional circumstance is generally applicable where
the defendant is physically present at or near the location where the contraband
See, e.g., id. at 699-700 (defendant in automobile where contraband
found); Person v. State, 764 N.E.2d 743, 751 (Ind. Ct. App. 2002) (defendant
exited bedroom where gun was found), trans. denied; Conrad v. State, 747 N.E.2d
575, 583 (Ind. Ct. App. 2001) (defendant asleep in bedroom where contraband found),
trans. denied; Tardy v. State, 728 N.E.2d 904, 908 (Ind. Ct. App. 2000)
(defendant found in bathroom where cocaine was located behind the toilet), trans. not
sought; contra Ladd v. State, 710 N.E.2d 188, 191 (Ind. Ct. App. 1999)
(defendant not present when drugs found in his home but holding that drugs
were in plain view and in close proximity to items owned by defendant),
trans. not sought.
When contraband is found in plain view on premises that are not possessed
exclusively by the defendant and the defendant is nowhere around we fail to
see how, without more, an inference can be drawn that the defendant knows
of the presence of drugs. Indeed we have said that the plain
view additional circumstance means within the defendants plain view.
Henderson, 715 N.E.2d
at 836. Here, not only were the contraband items not plainly viewable
even by the officers conducting the search, but also Gee was not present
when the items were seized. In sum, evidence of the plain view
additional circumstance was insufficient to show that Gee had the intent to maintain
dominion and control over the contraband.
The record shows that several receipts and invoices from various businesses, all of
which bore Gees name, were found in a drawer in the kitchen of
the house. R. at 79-85. However, no drugs or drug paraphernalia
were discovered in the kitchen. Other personal items belonging to Gee, a
social security card, and a birth certificate, were located in an upstairs bedroom
that Gee occupied, but no drugs or drug paraphernalia were found anywhere in
the vicinity. By contrast in a bedroom occupied by Lewis, officers found
a lock box under a bed containing $5000 in $20 bills.
at 89-90, 92-93. According to Officer Krider, this particular dollar denomination is
common in illegal drug sales. Id. at 120. The record shows
that the only personal items found near the contraband were several photographs in
which Gee appeared with his cousin Lewis along with other people. The
photographs were located in the cabinet underneath the shelf. Id. at 186.
However when asked the question, You dont know who own [sic] those
pictures, whether they were [Lewis] pictures or [Gees] pictures, you dont know do
you? Officer Krider answered, [C]orrect. Id. at 120.
It is clear that the photographs are the only items that could plausibly
qualify as having been mingled with the confiscated drugs. However absent any
evidence of who owned the photographs we cannot say the location of the
drugs was somehow associated with Gees personal property.
See, e.g., Davenport, 464
N.E.2d at 1307 (Ind. 1984) (describing that in a house occupied by the
defendant and his girlfriend, drugs were found in a dresser drawer along with
a mans watch and several syringes in the only bedroom in the residence).