State v. Palacio

*555 STEIN, Justice,

dissenting.

The narrow but very significant issue in this case concerns the quality of proof necessary to convict an automobile passenger of drug possession when a substantial quantity of drugs is found secreted in the automobile. The majority concludes that testimony describing defendant as nervous while the police searched the car, that defendant and the driver conversed in Spanish during the search although defendant had some understanding of English, and that cocaine valued at $960,000 was found in a secret compartment behind the back seat was sufficient to sustain defendant’s conviction. I disagree and therefore dissent.

The pertinent facts are set forth in the majority opinion. Defendant and the owner and driver, Juan Londono, were indicted for possession of cocaine and possession with intent to distribute. N.J.S.A. 24:21-20(a)(1) and 24:21-19(a)(1). Defendant was tried separately, with a court interpreter fluent in English and Spanish. Convicted by a jury, the trial court granted defendant’s motion for a judgment of acquittal. The Appellate Division reversed, reinstating the conviction. State v. Palacio, 205 N.J.Super. 256 (1985). Conceding that defendant’s mere presence in the vehicle was insufficient to establish either knowledge that there was cocaine in the vehicle or control over the cocaine, id. at 259 , the Appellate Division noted that Londono, the driver, was from South Carolina and defendant produced a Florida license, concluding that “both were far from home and were traveling together.” Id. at 261-62 . The court also inferred that they spoke in Spanish in order “to speak privately so the police would not understand them.” Ibid. Finally, the court concluded that since Londono was obviously engaged in drug smuggling, it was self-evident that “a smuggler with a large quantity of contraband would not invite a stranger into the car and run the risk the stranger might steal the car and * * * the contraband with it.” Ibid. Thus, the court inferred that “Londono knew and trusted *556 defendant, [who] was involved in the smuggling operation with Londono.” Ibid.

In affirming the Appellate Division’s reinstatement of defendant’s conviction, the majority relies almost entirely on the circumstances stressed in the opinion below. Ante at 554. In addition, the Court notes that defendant appeared “overly nervous” while the police searched the car and that defendant watched the state trooper as he conducted the search. Ante at 545, 546.

There is no significant question about the basic principles that control the disposition of this case. In reviewing a trial court’s judgment of acquittal after conviction by a jury, we give the State the benefit of all reasonable inferences from the testimony, and then consider whether “a reasonable jury could find guilt of the charge beyond a reasonable doubt.” State v. Reyes, 50 N.J. 454, 459 (1967). It is also settled that in drug possession cases,

[w]here * * * a defendant is one of several persons found on premises where illicit drugs are discovered, it may not be inferred that he knew of the presence or had control of the drugs unless there are other circumstances or statements of the defendant tending to permit such an inference to be drawn. [State v. Brown, 80 N.J. 587, 593 (1979) (quoting State v. Sapp, 71 N.J. 476 (1976), rev’g on dissenting opinion below, 144 N.J.Super. 455, 461 (App.Div.1975)).]

Thus, the critical issue in this case is whether the collateral circumstances, other than defendant’s mere presence in the vehicle, would permit a reasonable jury to conclude beyond a reasonable doubt that defendant knew the drugs were present, had actual or constructive possession of the drugs, see State v. Schmidt, 110 N.J. 258, 266-71 (1988), and intended to distribute them. We gain insight from several federal decisions that have addressed the issue in cases involving similar circumstances. In United States v. Moreno-Hinojosa, 804 F.2d 845 (5th Cir. 1986), the court reversed defendant’s conviction of possession of marijuana with intent to distribute. The evidence indicated that defendant was a passenger in a truck carrying 450 pounds of marijuana. Defendant knew the driver of the truck and had two prior drug convictions. When questioned by federal *557 agents, defendant misrepresented both his job status and his prior relationship with the driver. The court concluded that the government’s evidence was insufficient to sustain the conviction:

Even if Moreno knew that Maldonado was making an illegal marihuana run, this fact would not be sufficient evidence to establish his possession without an additional showing that he was riding in the truck to participate in the possession and distribution. The government did not make this additional showing even circumstantially beyond a reasonable doubt. [ 804 F.2d at 847 .]

Similarly, in United States v. Collazo, 782 F.2d 1200 (4th Cir.1984), cert. denied sub nom. Nunes-Varela v. United States, 469 U.S. 1105 , 105 S.Ct. 777 , 83 L.Ed.2d 773 (1985), the court considered the sufficiency of evidence to sustain a conviction for possession of marijuana against a defendant who was an armed passenger in a vehicle escorting a U-Haul truck containing a large shipment of marijuana. Another occupant of the vehicle was a key figure in the charged marijuana conspiracy. Defendant was not in view when the drug transaction occurred. Reversing the conviction for possession, the court found the evidence insufficient to prove that defendant “knew of the presence of the marijuana or exerted any dominion or control, actual or constructive, sufficient to indicate possession with intent to distribute.” Id. at 1205. See also United States v. Weaver, 594 F.2d 1272, 1275 (9th Cir.1979) (reversing passenger’s conviction for possession of cocaine where package containing $30,000 worth of cocaine found partly under passenger seat; evidence ruled insufficient to prove “requisite dominion and control over the package to constitute possession”).

Obviously, cases such as these are fact-sensitive. But the principle to be distilled from the federal court decisions is that the proof that supplements a defendant’s presence must tend to demonstrate both knowledge of the contraband’s existence and the ability to exert control over it. When the defendant is a passenger in a vehicle in which drugs are found, and declines to testify, the prosecutor’s task may be formidable. Nevertheless, we do not permit defendants to be convicted because the police *558 suspect that they are guilty. What due process requires is proof of guilt beyond a reasonable doubt.

The evidence in this case falls far short of the mark. The fact that defendant spoke to the driver in Spanish, his native language, while the police searched the car, proves absolutely nothing relevant to the offenses at issue in this case. Nor should any significance have been accorded to the fact that defendant watched the police as they searched the car. Indeed, why would he watch anything else? That defendant appeared nervous while the police searched the car proves little more than that the presence of police officers tends to make most people somewhat apprehensive. The conclusion that complicity between defendant and the driver was established because they were both far from home and traveling in the same car is simply unfounded. Those facts may suggest the existence of a relationship between the occupants of the vehicle, but they prove nothing about defendant’s knowledge of the cocaine or his ability to control it.

In my view, the evidence in this case was not sufficient to enable a reasonable jury to find defendant’s “guilt of the charge beyond a reasonable doubt.” State v. Reyes, supra, 50 N.J. at 459 . I would reverse the judgment of the Appellate Division.

Justice CLIFFORD joins in this opinion.

For affirmance — Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O’HERN, and GARIBALDI — 5.

For reversal — Justices CLIFFORD and STEIN — 2.