OF CERTIORARI TO COURT OF APPEAL SECOND CIRCUIT, PARISH OF
matter we consider whether the evidence presented at trial,
when viewed in the light most favorable to the state,
reasonably permits a finding that defendant possessed 18
grams of marijuana with the intent to distribute it. We find
that, while the quantity of marijuana is small, its packaging
in conjunction with other indicia of drug trafficking found
nearby, when viewed through the due process lens of the
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) standard, sufficed to exclude the
hypothesis of innocence that the marijuana was intended only
for personal use.
October 30, 2013, defendant Gary D. Howard was arrested in
the home of his girlfriend Melissa Stewart pursuant to an
arrest warrant for violating his probation and parole.
Officers had received a tip that defendant could be found at
that location, which included an allegation that he possessed
a firearm and was involved in narcotics distribution. The
officers knocked on the door to the residence and, when Ms.
Stewart answered, asked her where he was. According to her
testimony, she responded that he was in the bedroom.
According to an officer's testimony, when asked if the
officers could "go and get him" pursuant to the
arrest warrant, she responded by mutely stepping aside so
that the officers could enter.
officers found defendant in bed. They also found 11 grams of
marijuana, in four separate bags inside a larger bag tied
around the waistband of his boxer shorts (which were on the
floor), another bag containing 7 grams of marijuana inside
the bedroom closet, and a box of sandwich bags sitting on a
TV stand in the bedroom. Also inside the closet, the officers
found a gun, some 1x1 jeweler bags, and an empty prescription
bottle with a small baggie inside containing marijuana
residue. Defendant was arrested and subsequently charged with
possession with intent to distribute marijuana and with
illegal possession of a weapon while in possession of a
controlled dangerous substance. After his motion to suppress
the evidence was denied, he proceeded to trial and a jury
found him guilty as charged of possession of marijuana with
intent to distribute, but not guilty on the weapon charge.
The state thereafter filed a fourth-felony habitual offender
bill. Defendant pleaded guilty to being a second-felony
offender in exchange for a term of 18 years imprisonment
without benefit of parole, probation, or suspension of
court of appeal affirmed defendant's conviction and
sentence. State v. Howard, 49, 965 (La.App. 2 Cir.
6/24/15), 169 So.3d 777. The court of appeal found that the
multiple bags containing marijuana, which an expert testified
was consistent with having been packaged for distribution, as
well as the quantity of similar empty bags and the absence of
any smoking paraphernalia sufficed to support defendant's
conviction for possession with intent to distribute
marijuana. Id., p. 12, 169 So.3d at 786. After
reviewing the record and with the benefit of briefing and
argument, we agree.
reviewing the sufficiency of the evidence to support a
conviction, an appellate court in Louisiana is controlled by
the standard enunciated by the United States Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) . . . . [T]he appellate court must
determine that the evidence, viewed in the light most
favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime
had been proved beyond a reasonable doubt." State v.
Captville, 448 So.2d 676, 678 (La. 1984).
which give rise to a reasonable inference of an intent to
distribute include: "(1) whether the defendant ever
distributed or attempted to distribute the drug; (2) whether
the drug was in a form usually associated with possession for
distribution to others; (3) whether the amount of drug
created an inference of an intent to distribute; (4) whether
expert or other testimony established that the amount of drug
found in the defendant's possession is inconsistent with
personal use only; and (5) whether there was any
paraphernalia, such as baggies or scales, evidencing an
intent to distribute." State v. Hearold, 603
So.2d 731, 735 (La. 1992) (reciting factors provided in
State v. House, 325 So.2d 222, 225 (La. 1975)). Mere
possession of a controlled dangerous substance is not
evidence of intent to distribute that substance unless the
quantity is so large that no other inference is reasonable.
State v. Greenway, 422 So.2d 1146, 1148 (La. 1982).
However, "while the amount of drugs may be relevant in
evaluating whether the defendant engaged in possession with
the intent to distribute, it is not the determinative factor
statutorily. Ultimately, it is the intent to distribute that
must be proved regardless of the amount of drugs
possessed." State v. Ellis, 14-1511, p. 3 (La.
10/14/15), 179 So.3d 586, 588.
Court addressed the sufficiency of evidence required to
convict a defendant of possession with intent to distribute
marijuana most recently in State v. Tong, 609 So.2d
822 (La. 1992). In Tong, the defendant and his
friend were stopped for a routine traffic stop when the
officer noticed a strong smell of marijuana emanating from
the car. After obtaining a search warrant for the
defendant's car, the officer recovered two plastic bags
containing marijuana, three empty plastic sandwich bags and a
dietetic scale. At trial, the state's expert conceded
that the "reeking smell of marijuana from the car
indicated that the occupants 'were users, ' and that
the small quantity in the bags 'could be consistent'
with personal use." The expert also noted that the
dietetic scale was too crude to measure the marijuana in the
individual plastic bags. Id. at 824-825. After the
jury found defendant guilty of possession of marijuana with
intent to distribute, this Court reversed and entered a
conviction for simple possession. Id. at 826.
similarities between the present case and Tong begin
and end with the small quantities of marijuana involved. In
contrast with Tong, in which there was substantial
evidence in favor of the hypothesis of innocence, i.e. that
the marijuana was for personal use, there were no such
indicia in the present case. Officers here detected no smell
of burnt marijuana and no means of using the marijuana was
found. While defendant proposes there might have
been smoking paraphernalia elsewhere in the residence
but not found, a jury cannot be permitted to base its verdict
on speculation; otherwise, they might just as easily
speculate that a substantial quantity of cash, drugs, and a
scale were present elsewhere but not found, and a jury cannot
speculate as to a defendant's guilt.
applied to a case involving circumstantial evidence, such as
this, the Jackson standard requires an appellate
court to determine whether viewing the evidence in the light
most favorable to the prosecution, a rational trier of fact
would have concluded beyond a reasonable doubt that every
reasonable hypothesis of innocence had been excluded.
State v. Morris, 414 So.2d 320, 321-22 (La. 1983);
R.S. 15:438; see also State v. Captville, 448 So.2d
676, 680 (La. 1984) (when fact finder reasonably rejects
hypothesis of innocence offered by the defendant, that
hypothesis fails and the defendant is guilty unless another
hypothesis of innocence is suggested by the record that would
cause rational fact finder to have a reasonable doubt as to
the defendant's guilt).
offers two hypotheses of innocence. The first can quickly be
dismissed. Defendant claims he divided 11 grams of marijuana
into four separate bags, and then placed those inside one
larger bag, which he tied around the waist band of his boxer
shorts, all in an effort to decrease the chance of it being
discovered in a pat-down search. However, the arresting
officer testified that marijuana packaged and concealed in
this form would "more than likely" be detected in a
pat-down search, and the officer further opined that whether
packaged as here or simply left in one bag, it would not have
affected the outcome of any search. In the absence of any evidence this tactic
would stand any chance of rendering the marijuana less likely
to be found in a pat-down, this hypothesis is not so
reasonable "that no rational factfinder, if properly
instructed on the principles of circumstantial evidence,
could have found proof of guilt beyond a reasonable
doubt." State v. Davis, 559 So.2d 114 (La.1990)
second, and more reasonable, hypothesis of innocence is that
he purchased the 11 grams of marijuana for personal use just
as it was found, individually packaged in four bags, roughly
equal in weight, and contained within the larger bag. This
hypothesis, however, fails to account for the large quantity
of similar plastic bags found in the bedroom with
him,  or the firearm in the closet of
the bedroom in which defendant was evidently comfortable (and
in a residence for which he had a key), or why the marijuana
was concealed in the manner it was within the boxer shorts,
or the absence of any indication of marijuana use such as
smoking paraphernalia, or the testimony of a law enforcement
officer who qualified as an expert and testified that the
foregoing was all more consistent with distribution rather
than personal use. A reasonable alternative hypothesis is not
one that merely "could explain the events in an
exculpatory fashion, " but one that, after viewing all
of the evidence in a light most favorable to the prosecution,
"is sufficiently reasonable that a rational juror could
not 'have found proof of guilt beyond a reasonable
doubt.'" State v. Captville, 448 So.2d 676,
680 (quoting Jackson v. Virginia). Here,
defendant's hypothesis of innocence, that the drugs were
for personal use, when all of the evidence is viewed in the
light most favorable to the prosecution, is not so reasonable
that a rational juror could not have found proof beyond a
reasonable doubt that defendant possessed the marijuana with
the intent to distribute it rather than use it.
finding the evidence sufficient, we also briefly address
defendant's contention that the district court erred in
denying his motion to suppress the evidence. The court of
appeal found that the trial court correctly denied this
motion to suppress, finding that Ms. Stewart consented to the
officers' entry to her home and the bedroom in which
defendant was apprehended, and in which defendant had no
reasonable expectation of privacy. Howard, 49, 965, pp. 17-18, 169
So.3d at 789. We agree.
search warrant must be obtained, absent exigent circumstances
or consent, to enter the house of a third party to search for
the subject of an arrest warrant. Steagald v. United
States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38
(1981); State v. Wolfe, 398 So.2d 1117 (La.1981).
However, in State v. Barrett, 408 So.2d 903 (La.
1981), this Court declined to extend the exclusionary rule to
evidence obtained from a warrantless, non-consensual entry
into a home of a third party when exigent circumstances did
not exist because, finding under those circumstances that
defendant lacked standing to challenge the legality of the
search. Defendant here asks us to overrule
Barrett. However, because
the court of appeal's determination appears correct that
Ms. Stewart consented to the officers' entry without
being coerced into doing so, it is not necessary to reach the
issue of whether defendant has standing to challenge the
legality of the search.
prohibition against warrantless searches does not apply to a
search that is conducted pursuant to consent. See
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.
2041, 2043-44, 36 L.Ed.2d 854 (1973). To be valid, consent must be (1) free and
voluntary, in circumstances that indicate the consent was not
the product of coercion, threat, promise, pressure or duress
that would negate the voluntariness; and (2) given by someone
with apparent authority to grant consent, such that the
police officer reasonably believes the person has the
authority to grant consent to search. United States v.
Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242
(1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct.
1420, 22 L.Ed.2d 684 (1969).
defendant alleges numerous coercive elements, none are borne
out by the record. Instead, the record reflects that the
officers asked whether defendant was present in the
residence, Ms. Stewart indicated that he was in the bedroom,
and she stepped back to allow them to enter. Other than defendant's unsupported
allegations regarding coercion and shows of force, there
appears to be nothing showing the court of appeal erred in
its determination that Ms. Stewart consented to the
search. Therefore, the court below
correctly affirmed the conviction.
JOHNSON, C.J., dissents in part ...