The opinion
John I. Purtle, Justice, dissenting. Hereafter all automobile owners must be careful to search the containers and luggage of guests who ride in their vehicles. Failure to do so could result in a sentence to the Arkansas Department of Correction for ten years and a fine of $25,000. One must also be careful whom he talks to or rides with because in the event a person with whom one associates is convicted of a crime, he too could be considered an accomplice and sentenced likewise.
In this case the appellant and his friend were stopped by the officer because the car was “weaving back and forth.” After the vehicle was stopped, the officer had the driver, appellant’s guest, step out of the car for some reason. Traffic violations do not ordinarily require the driver to get out of the vehicle. As he was handcuffing the driver a packet of drug paraphernalia fell from his hands or pocket. Obviously the appellant saw what happened and when the officer came to his side of the car and asked to search his vehicle, he stated: “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out.” The majority has turned this statement into an incriminating one rather than one obviously made by a person who was shocked when suddenly confronted by the fact his companion possessed drug paraphernalia while riding in the appellant’s vehicle. It is apparent that the majority would have found it to be incriminating had the appellant said, “No, you can not search my vehicle.” It is my opinion that there is nothing under the sun that the appellant could have said or done that would have convinced either the trial court or this court that he was not guilty. After all, he was riding in an automobile which contained a plastic clothing bag with marijuana in it. What more proof of guilt is needed?
With the aid of a flashlight, the officer discovered in “plain view” a suitbag containing marijuana. His reason for deciding it contained marijuana was that he could not see the end of a clothes hanger sticking out of the top of the bag. After removing the bag from the car and placing it on the hood, he unzipped it and discovered the marijuana right there in “plain view.” Not a shred of evidence was introduced to indicate that the appellant knew this marijuana was in his automobile, or that he knew that the driver possessed drug paraphernalia. Everything connecting the appellant to this crime is purely speculative. Mere association is not enough to sustain a conviction.
We have previously gone far enough in upholding the convictions of people who are associated with known law violators through the joint occupancy of vehicles or premises. The majority states: “Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband.” I agree with this statement of the law. However, the majority then proceeds to dismantle this well-reasoned rule of law and to replace it with a subjective standard whereby a strong suspicion is all that is necessary to uphold a conviction.
There is not one scintilla of evidence in this record to show that the accused exercised care, control, or management over the contraband or that he knew the matter was in his vehicle. The effect of the decision today is to completely reverse the burden of proof and implant a new rule of law which creates a “rebuttable presumption” that joint occupancy alone is sufficient to establish joint possession — in this case, possession with intent to deliver. There is already firmly rooted in our law the rebuttable presumption that possession of a certain amount of contraband gives rise to the presumption of intent to deliver. To this presumption the court has today added, without expressly saying so, another rebuttable presumption that joint occupancy gives rise to the presumption of joint possession. In effect, the trial court and this court have “rebuttable presumptioned” this defendant into a ten year sentence. Under the holding today, all the state need prove is that contraband was found in the car in which a defendant was riding. The burden then shifts to the defendant to prove that he didn’t know it was there and that he didn’t intend to sell it. The court has taken a fundamental principle of criminal law — that the state must establish the guilt of one accused of a crime — and turned it completely on its head.
At the very least, the trial court should have given the proffered instruction on simple possession. Under the facts of this case the failure to do so is a clear violation of the statutory and constitutional rights of the appellant. The decision of the court today is completely contrary to previously existing case law. I would reverse and remand for a new trial.