STATE V. FISCHER: UNKNOWN POSSESSION TRANSFORMS INTO A STRICT LIABILITY CRIME.

• Author: Michlitsch, Jennifer M.
• Position: Case overview

1. INTRODUCTION

   In 1970, the South Dakota State Legislature adopted the Uniform Controlled Substances Act (Act). (1) The Act criminalizes various activities, including the knowing possession of a controlled substance. (2) The purpose of the Act is to effectively combat, at all levels of government, the serious drug problems that had spread across the nation. (3) To accomplish this goal, the Act emphasizes uniformity in state and federal laws. (4)

   Along with the adoption of the Act, the South Dakota State Legislature codified its intent that courts should interpret and construe a uniform law in such a manner "as to effectuate its general purpose to make uniform the law of those states which enact it." (5) Despite the legislature's clear intention for uniformity, the South Dakota Supreme Court has interpreted the knowingly element differently than other jurisdictions. (6)

   In State v. Fischer, for example, the court inferred knowledge of the methamphetamine from circumstances where the defendant did not own the vehicle; the drugs were under a different passenger's seat; and the defendant refused a drug test after marijuana was found on his person. (7) The majority incorrectly held that the knowingly element was supported by sufficient evidence because the prosecution did not prove "[Fischer was] aware that the facts exist which bring the act... within the provisions of [the] statute." (8) The element was not supported by sufficient evidence to prove he was aware of the methamphetamine located under another occupant's seat. (9) When a person does not own the vehicle, and especially when the vehicle is jointly occupied, the prosecution must present evidence that links the accused to the methamphetamine to establish knowledge. (10) Otherwise, a rational trier of fact cannot conclude beyond a reasonable doubt that the accused knowingly possessed the drugs located under another occupant's seat. (11)

   This note argues the evidence in Fischer was insufficient to establish proof beyond a reasonable doubt of knowledge of a controlled substance. (12) First, this note discusses the facts and procedure of State v. Fischer. (13) Then, it examines the knowingly element of possession of a controlled substance interpreted by the South Dakota Supreme Court and other jurisdictions as it provides background information on the element as well as pertinent statutes. (14) Next, this note focuses on the paradox between the South Dakota State Legislature's intent in passing the Act and the holding in Fischer that does not coincide with the purpose of the Act. (15) Finally, this note will compare how different jurisdictions that have adopted the Act have interpreted the knowingly element and concluded the opposite result of the Fischer Court when considering similar scenarios. (16)

2. FACTS AND PROCEDURE

   On November 16, 2011, Bryon Fischer and a female passenger sat in an illegally parked vehicle. (17) Sioux Falls Police Officer Pat Mertes observed the traffic violation and conducted a traffic stop. (18) Officer Mertes approached the vehicle and asked Fischer for his identification, and thereafter noted the vehicle was not registered to Fischer. (19) The female in the passenger's seat was not asked for her identification. (20)

   After asking for Fischer's identification, Officer Mertes observed an open beer can on the floor of the vehicle, and requested Fischer accompany him to the patrol car. (21) Thereafter, Officer Mertes discovered Fischer's license had been revoked, and confirmed Fischer was not the owner of the vehicle. (22)

   There were no physical indications that Fischer was under the influence of drugs or alcohol. (23) However, he was placed under arrest for driving with a revoked license. (24) Officer Mertes conducted a search incident to the arrest and found a wooden box in Fischer's pocket containing what appeared to be a marijuana pipe with burn residue. (25) Fischer was then placed in the back seat of the patrol car. (26)

   Officer Chris Bauman, who subsequently arrived at the scene, conducted a search of Fischer's vehicle. (27) During the search, Officer Mertes stood with the unidentified female passenger between the police car and the vehicle. (28) The search revealed an antique tin box under the front passenger's seat and Officer Bauman noticed that several items in the tin had residue on them likely from a controlled substance. (29) Fischer did not claim ownership of the tin box or its contents, and he declined to submit to a urinalysis. (30) The items inside the tin box found under the passenger's seat tested positive for methamphetamine. (31)

   Soon after, the unidentified woman was released. (32) She was never mentioned in Officer Mertes's police report. (33) If Officer Mertes did ask the woman's name, he stated that he could not remember it. (34) He stated at trial that he "didn't recall learning anything" about the female, even though he stood with her while the search of the vehicle was conducted by Officer Bauman. (35)

   On November 30, 2011, Fischer was charged with possession or use of drug paraphernalia, possession of a controlled substance, and possession of two ounces or less of marijuana; each was charged in conjunction with revocation of license for drug-related offenses. (36) The circuit court denied Fischer's motion to suppress evidence from the vehicle search based on a Fourth Amendment violation. (37)

   On December 3, 2013, a jury trial was held in Minnehaha County. (38) After the prosecution presented its case, the court denied Fischer's motion to enter a judgment of acquittal, determining the knowledge element of possession of methamphetamine was met. (39) The jury returned a guilty verdict on all counts. (40) Fischer appealed to the South Dakota Supreme Court, challenging the circuit court's ruling on his motion to acquit, and arguing the knowingly element was not proven beyond a reasonable doubt. (41)

   Fischer argued the court should have granted his motion for judgment of acquittal because the prosecution did not prove the knowingly element of possession of methamphetamine beyond a reasonable doubt. (42) Fischer admitted to his attorney that the marijuana pipe was his, but denied knowledge of the methamphetamine located in the third-party owned vehicle. (43) The prosecution did not offer any evidence to prove the knowledge element. (44) No evidence, such as fingerprints, was offered to directly connect Fischer to the methamphetamine. (45) Furthermore, no circumstantial evidence was proffered to link Fischer to the methamphetamine. (46) This included how long the methamphetamine was under the seat or how long Fischer possessed the vehicle. (47) The officers did not search the unknown female, who was seated in the passenger's seat drugs were found under. (48) They did not even ask her name. (49) Fischer argued that the verdict against him was "rooted in conjecture as opposed to facts or evidence." (50)

   A divided court affirmed the circuit court's verdict in an opinion authored by Chief Justice David Gilbertson. (51) The court held the prosecution met its burden of proving all elements of the offenses charged, including the knowingly element of possession of methamphetamine. (52) The court conceded that the evidence was not overwhelming, but there was enough evidence to persuade a rational trier of fact beyond a reasonable doubt that Fischer had knowledge of the drugs in the vehicle. (53)

   Despite upholding the conviction, the majority concluded that the three cases the prosecution cited to support its arguments were not dispositive of the present case. (54) First, the majority reasoned that the prosecution misapplied State v. Jahnz (55) and State v. Mattson (56) because they "typif[y] a class of cases to which [Fischer] does not belong." (57) Relying on Jahnz, the prosecution argued that inferences of knowledge were reasonable because the methamphetamine was found in the vehicle. (58) The majority reasoned that in Jahnz the prosecution only had to prove exclusive ownership for the jury to infer the defendant's knowledge. (59) In the present case, this inference of knowledge was not automatically reasonable because there were two occupants in the vehicle. (60) Relying on Mattson, the prosecution argued that Fischer's refusal to submit to a urinalysis allowed an inference that he had knowledge that the test would have been positive for methamphetamine. (61) The court reasoned Mattson was also an "exclusive access to the premises" case because a person has exclusive access to substances in his body. (62) The court held there was no evidence Fischer ingested methamphetamine, and therefore, Mattson did not apply. (63)

   Lastly, the prosecution relied on State v. Laplante (64) to argue that, since Fischer had marijuana on his person, it was more likely he had knowledge of the methamphetamine located under the passenger's seat. (65) The majority held Laplante was also not dispositive. (66) In Laplante, knowledge of prior drug use "was only used as one circumstantial 'brick' to suggest that it was more probable that the Laplantes had knowledge of controlled drug activity in the lower level of their home." (67)

   Although the court dismissed many of the prosecution's arguments, the court determined the record nevertheless contained sufficient evidence to support Fischer's conviction of possession of a controlled substance. (68) According to the majority, the evidence was not overwhelming, but there were sufficient facts to support the element of "knowledge." (69) These facts included that Fischer: (1) provided the vehicle's registration; (2) had marijuana in his pocket; and (3) declined to submit to a urinalysis. (70) The court reasoned those facts standing alone might not lead a jury to believe that Fischer "knew" the controlled substance was under the seat, but the facts as a whole gave rise to a reasonable inference of Fischer's knowledge of the drugs. (71)

   In her dissent, Justice Janine Kern argued that the...