December 15, 2016
Ditching your Stash
On December 12, 2016, the Minnesota Court of Appeals published State v. Barker, (a16-1100). It was not an assault case against Happy Gilmour but a constructive possession of drugs case. The State appealed this case after the district court dismissed the case after a probable cause challenge was filed by Barker. This case is published. So if you throw your drugs out of the window, the court of appeals made it easier for you to be prosecuted. Here are the facts:
In March of 2016, an agent with the Cannon River Drug and Violent Offender Task Force or the CRDVOTF as the kids refer to it, got information from a confidential source (We will call him “Bob”) that Barker was planning a trip to Chicago to get cocaine, marijuana and sit in the bleachers in Wrigley. The last part of that was a guess not in the evidence. Barker asked Bob to go with him on the trip. Bob drove a Nissan and Barker drove a rented black Dodge Charger. A Geo Metro would have been far more inconspicuous. The CRDVOTF a.ka. (“no one can remember that acronym”) was allowed to place a tracking device on the Nissan. Bob and Barker were in Chicago for four days. CRDVOTF remained in contact with Bob. Bob told the agents that Barker had obtained Ecstasy pills (purple and yellow colored), cocaine, marijuana and deep dish pizza. Barker, Bob and Barker’s cousin left Chicago and drove to Minnesota.
CRDVOTF agents were aware that Barker had a warrant and arranged to have him arrested when he entered Rice County. Rice County. When the officer’s observed Barker’s Charger traveling 87 mph in a 70. The officers attempted to conduct a traffic stop. The Charger initially slowed down but then Barker remembered it was a Charger and he wanted to drive it like it was rented. Chargers don’t stop for anybody. Certainly not the CRDVOTF. So he fled. Eventually, the Charger crashed into a ditch. Barker and his cousin fled on foot. Several officers pursued them and found them lying on their stomachs in a field. The officers searched the field for evidence but found nothing but corn. One officer looked at the Charger and noticed that the passenger window had been rolled down. The inside of the vehicle smelled like a Snoop concert. The officer searched the car and found 258.49 grams of marijuana. The next morning several more officers search the crash site on the route they believed the Charger traveled and found three baggies of Ecstasy within 20 feet of each other. They also found crack cocaine and powder cocaine. All of these items were found on the east side of the road in the ditch south of the crash site. The pills were approximately 1,000 feet from the crash. The cocaine was several hundred feet away. The powdered cocaine was over 27 grams. The rock cocaine was 5.8 grams. The colored pills were not Ecstasy but meth and weighed 7.8 grams. Barker challenged he possessed the drugs and the district agreed and dismissed all the drug charges. The State was not happy and appealed.
The COA flipped the case and said Barker could be prosecuted. The mere fact that an item is not in a defendant ‘s physical possession at the time of apprehension does not preclude the prosecution for actual possession. In State v. Olhausen, the defendant was convicted when he told the police he threw meth out of his car window while fleeing despite the fact the officers never found the meth. 681 N.W.2d 21, (Minn. 2004). Thank you for the admission Mr. Olhausen. The COA said that while there is no direct evidence that Barker physically possessed the drugs. However, Bob’s statements and other circumstantial evidence can provide probable cause to establish actual possession at an earlier time. The COA also notes that “unlike proof beyond a reasonable doubt, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” State v. Harris, 589 N.W.2d 782. 790-91 (Minn. 1999). The district must view the evidence in the light most favorable to the state, State v. Knoch, 781 N.W.2d 170, 178 (Minn.App. 2010). So the court must view the state’s case like one of those mirrors designed to make you look skinnier.
The court used the following circumstances to base their decision that PC existed (1) Barker went to Chicago to purchase drugs.; (2) during the trip, Barker obtained Ecstasy pills that were Viking colors; (3) Also bought cocaine; (4) Had Ecstasy and marijuana in his trunk; (5) He fled; (6) Crashed his vehicle, fled on foot and apprehended in a field ;(7) 258 grams of marijuana were found in the Charger; (8) the passenger side window had been followed down; (9) The morning after the officers found drugs; (10) the positioning of the drugs indicated they may have been thrown out the passenger window.
The COA also responded to the argument that maybe Barker’s cousin threw the drugs out of the window. However, that argument was struck down because Barker purchased them. Barker fled. Barker stopped the vehicle in the middle of the road before the crash to presumably gather the drugs. Finally, Barker crashed so that crash must have been him taking his eyes off the road to throw the drugs. Barker should have one a Javier Baez side toss instead of throwing overhand in a fundamentally sound fashion.
So bottom line, this case should make it to a jury where the good people of Rice County can listen to Barker’s plea of innocence and to get their animals spayed and neutered. So here are the takeaways. Don’t mess with the CRDVOTF. Don’t let their lame acronym fool you – they don’t play. “CRDVOTF, OPEN UP!” “Who?” “CRDVOTF!” “What does that stand for?” “Cannon River Drug and Violent Task Force, duh.” Also if you are going to discard your drugs, throw them farther or don’t be a wuss and swallow them. Finally, if you are going to hide in the field make sure they are fields of gold to hide the purple and yellow pills.