Ervin v. Virginia

Brief Fact Summary.

Samuel Ervin, Appellant, was convicted of possession of marijuana with the intent to distribute.  Appellant appealed alleging that the Common Wealth offered insufficient evidence that the Defendant had knowledge of the marijuana found in the car.

Synopsis of Rule of Law.

Mere occupancy or proximity to an illegal drug, standing alone, does not constitute guilty knowledge. Rather, the facts must be considered based on a totality of the circumstances.

Facts.

On February 29, 2008, at 8:20pm, Officer O’Brien and Rad stopped Appellant for a traffic violation. As the officers approached the vehicle, the officers smelled “a strong odor of marijuana†through the cars open windows.  Appellant was the sole occupant in the vehicle, and he did not do any discrete movements while the officers approached.  Initially, the officers requested Appellants driver’s licenses and vehicle registration, but Appellant solely provide the officers with his licenses. Both officers searched the vehicle, took Appellants keys, opened the glove compartment with the key, and found the two bags of marijuana in the glove compartment, one with ten baggies and another with thirteen baggies, and the vehicle registration.  The vehicle belonged to Appellants daughter mother, Tiffany Killabrew, who would regularly loan the care to various people, including Appellant. Ms. Killabrew testified that she loaned the vehicle to Appellant on February 29, 2008, sometime between 6:00pm and 7:00pm. Appellant denied ownership of the marijuana and claimed he was not familiar with the smell of it. The trial court found that the marijuana was subject to his dominion and control.

Issue.

Whether the Common Wealth offer sufficient evidence that Appellant had knowledge of the marijuana found in the glove compartment of a car he did not own.

Held.

Whether the Common Wealth offer sufficient evidence that Appellant had knowledge of the marijuana found in the glove compartment of a car he did not own.

Dissent.

First, the odor or the burnt marijuana is not sufficient to indicate that Appellant has knowledge of the marijuana in the glove compartment because, as the majority notes, the officer indicated that the smell was of burnt, already smoked marijuana. Thus, the majority fails to draw an important distinction between fresh marijuana and burnt marijuana that could have been smoked in the car prior to the time Appellant took possession of the vehicle. Second, although Appellant had dominion and control of the glove compartment, they key, this fact does not prove Appellants knowledge of the nature and contents of the items inside the glove compartment. Third, Appellant did not give the officers the registration when the officer asked for “his driver’s license and registration†because it was not “his†car. Fourth, even if the Appellants testimony was self-serving, Appellant familiarity with the smell of marijuana does not prove that Appellant had smoked marijuana or knew that vehicle had fresh marijuana while he was in possession. Lastly, the majority places weight on the significant amount of marijuana found in the vehicle, suggesting an individual would not carelessly leave it in the car. However, it was not carelessly left or abandoned because it was in a secured glove compartment. Therefore, the evidence is insufficient to find Appellant had knowledge of the possession of marijuana.

Discussion.

The court considered five separate facts to consider whether Appellant had knowledge of the marijuana in the glove compartment. First, the court noted Appellant was driving a vehicle that had a strong smell of marijuana that anyone inside or near the vehicle would know it had marijuana. Second, Appellant was the sole individual with possession of the key to access the glove compartment. Third, Appellant was reluctant to provide the officers with his vehicle registration when asked for it, which suggest he did not want to access the glove compartment with the marijuana in the officer’s presence. Fourth, Appellants testimony that he was not familiar with the smell of marijuana was self-serving. Lastly, the amount of marijuana in the glove compartment was worth approximately $200 in street value, and it was unlikely that someone else left the marijuana in the vehicle.  Therefore, based on a totality of the circumstances, a reasonable fact finder could find that Appellant had knowledge of the marijuana found in the vehicle.