ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

HARMON WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-1075

SEPTEMBER 3, 2003

APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT

[NO. CR 2001-235-2]

HONORABLE DUNCAN McRAE CULPEPPER, JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Hempstead County Circuit Court convicted the appellant, Harmon Williams, of possession of a controlled substance with intent to deliver. The trial court sentenced him to forty years' imprisonment in the Arkansas Department of Correction. On appeal, he contends that the trial court erred by denying his motions for a directed verdict, arguing that the State failed to introduce sufficient evidence that he possessed crack cocaine. In addition, he argues that the trial court erred by denying his motion to suppress a cigarette package containing rocks of cocaine. We affirm.

On August 23, 2001, five police officers were patrolling in Hope, Arkansas, in an unmarked vehicle when they observed five men standing around a car in a yard. The officers stopped their vehicle and exited. As the police officers approached, appellant turned away from them, dropped his hands as if to hide something, and then walked away from the area where he was first seen standing. In that area, Officer Courtney recovered a cigarette package containing rocks of crack cocaine weighing 8.9 grams. Appellant was arrested shortly thereafter.

Appellant claims that the trial court erred in denying his motions for a directed verdict. Motions for directed verdicts are treated as challenges to the sufficiency of the evidence. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). We have noted that this review includes an evaluation of otherwise inadmissible evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). We affirm a conviction if substantial evidence exists to support it. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion without having to resort to speculation or conjecture. Id. We do not, however, weigh the evidence presented at trial, as that is a matter for a fact finder. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). Nor will we weigh the credibility of the witnesses. Id.

It is unlawful for any person to possess a controlled substance, including cocaine, with the intent to deliver it. Ark. Code Ann. § 5-64-401(a) (Supp. 2001). Possession of more than one gram of cocaine gives rise to a presumption that a person who possesses it does so with the intent to deliver. Ark. Code Ann. § 5-64-401(d). Generally, it is not necessary for the State to prove literal physical possession of contraband in order to prove possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Possession of contraband may be proved by constructive possession, which is the control or right to control the contraband. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). To prove constructive possession, the State must show that the defendant exercised care, control, or management over the contraband. Id. Constructive possession may be established by circumstantial evidence. Id. A defendant's suspicious behavior, coupled with proximity to the contraband, is "clearly indicative of possession." Id. at 453, 73 S.W.3d at 613-614.

At trial the testimony demonstrated that, as the police officers approached, appellant turned away from them, dropped his hands as if to hide something, and then walked away from the area where he was first seen standing. In that area, Officer Courtney recovered a cigarette package containing rocks of crack cocaine weighing 8.9 grams. We believe that the jury reasonably concluded from this evidence that appellant possessed the crack cocaine. Therefore, the trial court did not err in denying appellant's motions for a directed verdict.

Next, appellant maintains that the trial court erred by denying his motion to suppress the cigarette package containing the rocks of crack cocaine as it was illegally obtained. On review of a trial court's decision on a motion to suppress evidence, we review the trial court's factual determinations for clear error, while reviewing its legal conclusions de novo. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We defer to the superior position of the trial court to determine the credibility of witnesses and to resolve evidentiary conflicts, but we resolve legal questions through an independent determination based upon the totality of the circumstances. Id.

To prevail on a claim that evidence was illegally obtained, a defendant must demonstrate that he had a legitimate expectation of privacy in the area searched or things seized. Syakhasone v. State, 72 Ark. App. 385, 39 S.W.3d 5 (2001). A defendant has no legitimate expectation of privacy in property that he has abandoned. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). Abandonment is primarily a question of the person's intent, whether the person has "voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search." Kirk v. State, 38 Ark. App. 159, 162, 832 S.W.2d 271 (1992). By dropping the cigarette package to the ground, appellant demonstrated his intent to abandon it, and, consequently, abandoned any Fourth Amendment rights he might have had. There is no cognizable Fourth Amendment injury in the seizure of abandoned property. Abel v. United States, 362 U.S. 217, 241 (1960).

Appellant contends that the abandonment was the fruit of an illegal seizure of his person, or alternatively, of an illegal entry onto private property by the police. We do not agree. We recognize that a person is seized within the meaning of the Fourth Amendment:

only if, in view of all circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). If there is no detention - no seizure within the meaning of the Fourth Amendment - then no constitutional rights have been infringed. Florida v. Royer, 460 U.S. 491 (1983). Police can be said to have seized an individual "only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567 (1988) (citing Mendenhall, supra). The United States Supreme Court has also characterized it as "so long as a reasonable person would feel free" to disregard the police and go about his business, California v. Hodari D., 499 U.S. 621, 628 (1991), the encounter is consensual, and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless its loses its consensual nature. Florida v. Bostwick, 501 U.S. 429 (1991).

Jefferson v. State, 349 Ark. 236, 245, 76 S.W.3d 850, 855-856 (2002).

In California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court held that no seizure, within the meaning of the Fourth Amendment, had occurred until Hodari was physically tackled by a police officer following a chase. In that case, officers in Oakland, California, observed a group of youths surrounding a car. As the officers approached, the car sped away and Hodari, one of the youths, fled on foot. An officer chased Hodari and, during the pursuit, observed Hodari discard a rock-like substance that was later found and established to be cocaine. The Supreme Court upheld Hodari's adjudication as a juvenile against his motion to suppress the cocaine because it concluded that the cocaine was discovered following the chase of a person who had not been under police control. A show of authority, without any application of force by the officer, to which the subject does not yield, is not a seizure. Id; Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001).

Likewise in this case, appellant was not seized at the time he abandoned the cigarette package, as he dropped it to the ground before he had any contact with police. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). Rather, a seizure occurs only if, in view of all of the surrounding circumstances, a reasonable person would not feel free to ignore the police presence and go about his business. See id.

The case at bar is similar to Rabun v. State, 36 Ark. App. 237, 821 S.W.2d 62 (1991), where we held that Rabun had not been seized by approaching police officers when he abandoned a cigarette package containing cocaine. In that case we stated:

The officers here were merely approaching the curb in the patrol car when appellant discarded the contraband. There is no indication from the record that the officers had activated the siren or had turned on the flashing lights, or had engaged in any other activity which would have led a reasonable person to believe that he was not free to leave. Since the appellant disposed of the package containing the contraband prior to his being detained by the police, it cannot be said that the discovery of the contraband was the fruit of detention, legal or otherwise.

Id. at 240, 821 S.W.2d at 64.

At the time appellant dropped the package containing the crack cocaine, the police were only approaching him. There had been no show of authority or conduct by the police that would cause a reasonable person to feel that he was not free to go about his business. Thus, because appellant was not seized when he abandoned the cocaine, the package containing the cocaine was not the fruit of an illegal seizure.

Appellant also attacks the legality of the police surveillance activity, suggesting that the officers are required to have reasonable suspicion of criminal activity before patrolling the streets and before deciding to stop their unmarked police van to investigate the activity in the yard. Appellant cites to Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), and Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105 (2000), and asserts that the police acted illegally because they decided to investigate him and the others merely because he was standing in the wrong place at the wrong time. He overlooks the fact that Stewart, supra, and Jennings, supra, involved the seizure of a defendant, which required reasonable suspicion. In Stewart, supra, the supreme court found that Kathy Stewart was seized when the police asked her to remove her hands from her coat pocket and approach the police car. Id. at 145-46, 964 S.W.2d at 797. In Jennings, supra, we concluded that Cameron Jennings was seized when the officer requested his identification, asked him to move out of the roadway, and patted him down for weapons. Id. at 52, 10 S.W.3d at 107-08. These cases do not support appellant's argument that the police are required to have reasonable suspicion to engage in activity that, while it may eventually lead to an investigative detention, does not involve any contact with a suspect.

Appellant's argument that the discovery of the cocaine was the fruit of an illegal entry onto private property is unavailing, as there is no indication that he owned the property where he was standing, or that he had any other legitimate expectation of privacy there. Appellant's standing to challenge the officers' entry onto the property depends on whether he had a legitimate expectation of privacy at stake, see Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (2002), and he did not demonstrate that interest.

We affirm.

Stroud, C.J., and Neal, J., agree.