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2005-UP-120 - State v. Alvarado
Aggressive driver unit stopped car because it was going 60 mph and only approximately 1 car length behind another car, and it

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State,        Respondent,

v.

Gustavo Alvarado,        Appellant.


Appeal From Greenville County
John W. Kittredge, Circuit Court Judge


Unpublished Opinion No. 2005-UP-120
Heard January 11, 2005 – Filed February 16, 2005   


AFFIRMED


Jeffrey Falkner Wilkes and Richard Harold Warder, both of Greenville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot, Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Gustavo Alvarado appeals his conviction for trafficking in marijuana.  We affirm.

FACTS

On December 13, 2001, Chris Hines, a deputy with the Greenville County Sheriff’s Department, was patrolling Interstate 85 looking for instances of aggressive driving, such as following too closely, improper lane changes, and various trucking violations.  During the early evening hours, Hines noticed a 1997 dark maroon Honda Accord tailgating and drifting onto the lane divider. This observation prompted Hines to follow the car, turn on his in-car video camera, and call out a traffic stop with his dispatch.

Hines then stopped the car; however, because of the heavy traffic on the highway, he went to the passenger side of the car and requested the occupant in the front passenger seat to open the window.  When the passenger opened the window about four or five inches, Hines immediately detected an overwhelming odor of air freshener as well as a faint odor of raw marijuana from inside the vehicle.

Alvarado, who was driving the car, produced a driver’s license.  Following standard procedure, Hines further requested the vehicle registration and insurance information.  After Alvarado produced these documents, Hines noticed the proof of insurance had expired and instructed Alvarado to step to the rear of the car. 

Hines then requested the passenger to look in the glove box to locate current registration and insurance information on the car.  Hines also asked the passenger his name and relationship to the driver.  The passenger produced identification from a company in Delaware that gave only his name.  He also stated he was “just a friend” and his date of birth was October 10, 1977.

After calling dispatch to check for warrants on both Alvarado and his passenger, Hines learned that Spartanburg County had an active warrant for someone with the same name as the passenger but a date of birth of September 15, 1981.  In addition, the passenger appeared to Hines to be in his late teens.  Hines attempted to verify the passenger’s age with Alvarado, and based on what Alvarado told him, determined that the passenger may in fact be the subject of the warrant.  Because of Hines’ concerns about the smells emanating from the car and conflicting information from Alvarado about the passenger, he kept Alvarado and the passenger separated and called for a backup as well as a narcotics K-9 officer. 

Hines testified he gave Alvarado warning tickets for following too closely and the lane change violation.  He further testified that he asked Alvarado if there was marijuana in the car and Alvarado hung his head and answered there was not.  In contrast, when Hines inquired about cocaine in the car, Alvarado raised his head and denied it.  When Hines asked a second time about marijuana, Alvarado denied it, but again hung his head and avoided eye contact.  In addition, Alvarado refused to allow a search of the car, even after Hines explained to him that as the driver, he had authority to consent. 

When the backup officers arrived, the passenger finally gave a correct date of birth matching what was on the warrant.  In addition, Deputy Teddy Hampton with the K-9 unit testified that contrary to the usual practice, his K-9 dog abruptly pulled him to the rear of the vehicle and scratched the bumper to indicate it had found something. [1]  

Upon opening the trunk, Hines found a U-Haul box.  When he pulled back one part of the lid of the box, he discovered marijuana wrapped in brown packing tape.  Officers then placed Alvarado under arrest. 

In addition to the U-haul box, officers recovered a large garbage-style black plastic bag also contained marijuana.  Inside this bag was a white trash bag with marijuana and several other smaller bags or bundles of marijuana.  During a search of the interior compartments of the car, officers found a set of scales used to weigh small items and a green pipe with a drawing of a skull on it.  In addition, Hampton, who searched Alvarado incident to his arrest, found a wad of cash on Alvarado’s person, which, Alvarado said, was around $700 but actually turned out to be more than that amount.

The Greenville County grand jury indicted Alvarado for the offense of trafficking in marijuana.  Following a jury trial in November 2002, Alvarado was found guilty as charged and sentenced to serve eighteen years and fined $15,000.  This appeal followed.

DISCUSSION

1.  Alvarado argues the trial court should have suppressed the drugs because the traffic stop was pretextual and the stop and resulting search were therefore unlawful.  We disagree.

“In an appeal from a motion to suppress evidence based on Fourth Amendment grounds, an appellate court may conduct its own review of the record to determine whether the evidence supports the circuit court’s decision.” [2]   Nevertheless, in reviewing such a motion on appeal, “this court is bound by the circuit court’s factual findings if any evidence supports the findings.” [3]  

Regarding Alvarado’s contention that the stop was pretextual, the trial court found that the stop was reasonable and supported by probable cause and that Hines’ conduct was entirely appropriate under the facts presented in this case.  We agree with the State that there is evidence in the record to support these findings. [4]   Hines testified he observed the Honda Accord only about one car length behind the vehicle in front of it while traveling at about sixty miles per hour.  He further stated that such a following distance was grossly inadequate under the standards of the National Traffic Safety Administration. [5]  

We also find no merit to Alvarado’s argument that the marijuana should have been suppressed because Hines did not have a reasonable suspicion to further detain him after giving him traffic violation warnings. 

In support of his argument that he was unlawfully detained, Alvarado cites State v. Williams [6] for the proposition that after the stop has been completed, further detention is improper.  In our view, although Williams limits what a police officer can do after a routine traffic stop, the case expressly allows further detention for questioning after the stop is completed if “the officer has a reasonable suspicion of a serious crime.” [7]

In this case, Hines stated he smelled the air freshener and the marijuana before he issued the traffic warning to Alvarado.  He further testified he became concerned that Alvarado’s passenger might have been the subject of an outstanding warrant.  In addition, as noted by the trial court, the conflicting stories that Alvarado and his passenger gave to Hines constituted an additional factor that when considered with the other suspicious circumstances, would lead to an articulable suspicion of criminal activity.

2.  We disagree with Alvarado’s contention that the chain of custody for the marijuana found in the car was not sufficiently established to admit the drugs into evidence. [8]  

“The admission of evidence is discretionary with the trial judge.” [9]   “Proof of chain of custody need not negate all possibility of tampering but must establish a complete chain of evidence as far as practicable.” [10]   “[I]f the identity of each person in the chain handling the evidence is established, and the manner of handling is reasonably demonstrated, no abuse of discretion is shown in the admission, absent proof of tampering, bad faith, or ill-motive.” [11]   Furthermore, “where there is a weak link in the chain of custody, as opposed to a missing link, the question is only one of credibility and not admissibility.” [12]

In the present case, Hines testified that after he seized the bags of marijuana, he listed them on the property report and secured them with evidence tape.  Tony Vinskus, the supervisor over the property and evidence section, testified that narcotics must be submitted to his division in tamper-proof, sealed packaging.  Vinskus also testified that when contraband is received, trained personnel witness the drop being made and the evidence remains in a locked dropbox until it is processed into evidence storage.  As to the one individual who handled the evidence before it was analyzed but was not called as a witness at trial, Vinskus testified about that employee’s responsibilities and the procedures she followed in carrying out her duties.  We have found no evidence suggesting this individual did not follow established protocol, and Alvarado does not direct our attention to anything in the record showing her work on the case deviated from standard procedure. [13]

3.  Finally, we reject Alvarado’s argument that he should have received a directed verdict because the evidence was insufficient to support a finding that he had dominion and control over the marijuana.

Any person “who is knowingly in actual or constructive possession” of ten pounds or more of marijuana is guilty of trafficking in marijuana. [14]   “To prove constructive possession, the State must show a defendant had dominion and control,” over the contraband. [15]   “Constructive possession can be established by circumstantial as well as direct evidence, and possession may be shared.” [16]   “The knowledge element may be proved circumstantially by evidence of acts, declarations, or conduct of the accused from which an inference may be drawn that the accused knew of the existence of the prohibited substance.” [17]   “Because actual knowledge of the presence of the drug is strong evidence of intent to control its disposition or use, knowledge may be equated with or substituted for the intent element.” [18]

In support of his argument, Alvarado emphasizes that the vehicle that he was driving belonged to his brother and he had merely borrowed it to give his cousin, Ricardo Gallegos, a ride.  He also notes that Gallegos testified at trial that Alvarado was unaware of and had nothing to do with the marijuana seized in the present case, which was found in a closed container in the trunk of the car. 

We, however, hold the record has sufficient evidence that would support a finding by the jury that Alvarado had at least the right to exercise dominion and control over the drugs.  It is undisputed that Alvarado was driving the car when it was stopped; therefore, it is reasonable to infer that he had dominion and control over “premises upon which the drugs were found.” [19]   And this is not the only evidence that supports Alvarado’s conviction.  Alvarado’s behavior during the traffic stop, including his refusal to make eye contact when asked if he had marijuana and the vague answers he gave to questions regarding the circumstances of his journey, could be considered indicative of his participation in criminal activity and of his awareness that he had been caught with contraband.  He also had over $700 in cash on his person when he was arrested.  Moreover, during the trial, Gallegos admitted to owning only the pipe that was seized from the car, which could support an inference that the scales belonged to Alvarado.  In addition, the excessive amount of air freshener in the car was susceptible of the inference that the occupants were attempting to mask the pungent smell of the marijuana, which, despite this effort, was of such a quantity that it emanated an odor that was detected almost immediately by both the arresting officer and the K-9 dog.

AFFIRMED.

HEARN, C.J., and GOOLSBY and WILLIAMS, JJ., concur.


[1]   Hampton stated that he usually started the dog from the front of the car and worked backwards.

[2]   State v. Abdullah, 357 S.C. 344, 349-50, 592 S.E.2d 344, 347 (Ct. App.), cert. denied (Nov. 19, 2004).

[3]   Id. at 349, 592 S.E.2d at 344 (emphasis added).

[4]   See S.C. Code Ann. § 56-5-1930 (1991) (prohibiting driving more closely than is reasonable); id. § 56-5-1900 (stating rules for driving on roadways laned for traffic); State v. Butler, 343 S.C. 198, 201, 539 S.E.2d 414, 416 (Ct. App. 2000) (“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”).

[5]   Hines also explained the in-car video that he took did not show any traffic violations because he turned the tape on only after he saw the initial violations. 

[6]   351 S.C. 591, 571 S.E.2d 703 (Ct. App. 2002).

[7]   Id. at 598, 571 S.E.2d at 707.

[8]   We further agree with the State that any error in the admission of this evidence was later cured by statements elicited by Alvarado in his case-in-chief from Ricardo Gallegos, the passenger in the car, that Gallegos bought a hundred pounds of marijuana and put it in the trunk of the car.

[9]   State v. Williams, 297 S.C. 290, 293, 376 S.E.2d 773, 774 (1989).

[10] Id.

[11] State v. Taylor, 360 S.C. 18, 25, 598 S.E.2d 735, 738 (Ct. App. 2004).

[12] State v. Carter, 344 S.C. 419, 424, 544 S.E.2d 835, 837 (2001). 

[13] We further agree with the State that there is no merit to Alvarado’s contention that testimony from four additional individuals whose names appeared on the property report was necessary.  According to Vinskus, these individuals were involved in handling the evidence only after it had been analyzed.  See State v. Singleton, 319 S.C. 312, 317, 460 S.E.2d 573, 576 (1995) (noting that when offering fungible evidence, the State “must trace possession of the substance and what was done with it from the time it was taken until the final analysis”).

[14] S.C. Code Ann. § 44-53-370(e)(1) (2002 & Supp. 2004).

[15] State v. Hudson, 277 S.C. 200, 202, 284 S.E.2d 773, 774-75 (1981).

[16] Id. at 202, 284 S.E.2d at 775.

[17] State v. Mollison, 319 S.C. 41, 45, 459 S.E.2d 88, 91 (Ct. App. 1995).

[18] State v. Kimbrell, 294 S.C. 51, 54, 362 S.E.2d 630, 631 (1987).

[19] State v. Lane, 271 S.C. 68, 73, 245 S.E.2d 114, 117 (1978) (quoting State v. Ellis, 263 S.C. 12, 23, 207 S.E.2d 408, 413 (1974)); see also State v. Potts, 464 P.2d 742, 745 (Wash. Ct. App. 1969) (rejecting the defendant’s argument that the failure of the prosecution to prove he was the owner of the car in which marijuana was found was fatal to the claim that he had constructive possession of the drugs and noting that the defendant, as the driver and sole occupant of the car, “had dominion and control over the ‘premises’”), cited in State v. Wise, 272 S.C. 384, 387, 252 S.E.2d 294, 295 (1979).