GILBERTSON, Chief Justice.
[¶ 2.] On November 16, 2011, at approximately 7 p.m., Sioux Falls Police Officer Pat Mertes observed an automobile parked on Spring Avenue, between 10th and 11th Streets, in Sioux Falls, South Dakota. The vehicle was parked under a sign that read: "No Parking on This Side of the Street." Fischer sat in the driver's seat of the vehicle, and an unidentified woman sat in the front passenger's seat. Officer Mertes decided to initiate a traffic stop because of the placement of the vehicle in the no-parking zone. Upon approaching the vehicle, Officer Mertes saw an open can of beer on the floor between the front driver's and passenger's seats. Officer Mertes asked Fischer to accompany him to his patrol car, and Fischer complied.
[¶ 3.] Officer Mertes and Fischer both sat in the front seat of Officer Mertes's patrol car. Fischer produced a South Dakota driver's license and vehicle registration. The registration revealed that Fischer was not the owner of the vehicle,
[¶ 4.] Upon discovery of the pipe, Officer Mertes asked Officer Chris Bauman, who had arrived at the scene during Officer Mertes's questioning of Fischer, to conduct a search of the vehicle. Officer Bauman discovered a collectible tin box underneath the front passenger's seat containing hollowed-out lightbulbs, hollow pen tubes, tweezers, a bottle cap, and some paper towels. Officer Bauman also noticed residue on several of the items, indicating the possible presence of a controlled substance.
[¶ 5.] The State charged Fischer with possession of methamphetamine, two ounces or less of marijuana, and drug paraphernalia. Fischer moved the circuit court to suppress all evidence produced from the search of the vehicle, and the circuit court denied the motion. At trial, after the State concluded its case-in-chief, Fischer asked the circuit court to enter a judgment of acquittal, and the circuit court also denied that motion. After the trial concluded, a jury found Fischer guilty of all three charges. The circuit court sentenced Fischer to ten years for possession
[¶ 6.] Fischer now appeals to this Court, raising the following issues:
[¶ 7.] Fischer asserts Officer Mertes did not have probable cause to arrest him for driving with a revoked license. According to Fischer, Officer Mertes did not observe him — and Fischer did not admit to — operating the vehicle. Thus, Fischer reasons, any search conducted subsequent to that arrest was invalid. Additionally, Fischer asserts that the subsequent search of the vehicle was improper under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), because he had already been placed under arrest, because "[i]t would not be reasonable to believe the vehicle contained any evidence of [driving with a revoked license,]" and because "it was not reasonable to believe that there would be further evidence of possession of marijuana in his vehicle." Additionally, Fischer asserts "the record is lacking evidence which, if believed, could be sufficient to sustain a finding of guilt beyond a reasonable doubt as to Possession of Controlled Substance." According to Fischer, the State did not prove that he knowingly possessed methamphetamine.
[¶ 9.] Although "[w]e traditionally review a circuit court's decision to suppress evidence under an abuse of discretion standard[,] ... we review a motion to suppress evidence obtained in the absence of a warrant de novo[.]" State v. Medicine, 2015 S.D. 45, ¶ 5, 865 N.W.2d 492, 495 (quoting State v. Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d 779, 781-82). "Thus, we review the circuit court's factual findings for clear error but `give no deference to the circuit court's conclusions of law.'" Id. (quoting Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d at 782).
[¶ 10.] Fischer first asserts that Officer Mertes did not have probable cause to arrest him for driving with a revoked license. The State argues that Fischer is precluded from challenging "either the propriety of his arrest or the resulting search of his person" because he failed to raise these issues below. Although Fischer asserts his challenge was preserved below, he further asserts that the circuit court's decision is reviewable as plain error. We agree with the State that Fischer did not preserve his argument challenging the validity of the arrest itself, and we disagree with Fischer that the circuit court plainly erred by admitting evidence gathered in the searches subsequent to the arrest.
[¶ 12.] Fischer asserts the language included in his motion to suppress was "broad enough to include a challenge to the propriety of his arrest and the resulting search of his person." "Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level."
[¶ 13.] In his motion to suppress, Fischer asked the circuit court to exclude the following items:
(Emphasis added.) Standing alone, a challenge to the effect of an arrest — e.g., the result of an incidental search — might be sufficiently broad to be viewed as a challenge of the arrest itself. Regardless, Fischer's rationale provides essential context. According to Fischer, the circuit court should have granted his motion for the following reason:
(Emphasis added.) Not once does this statement assert that the arrest was invalid; the only mention of the arrest is made to establish a temporal frame of reference for the search. Further, Gant and Overbey dealt with challenges to the scope of a search incidental to arrest, not challenges to the arrests themselves. See Gant, 556 U.S. at 336-37, 129 S.Ct. at 1715; Overbey, 2010 S.D. 78, ¶ 15, 790 N.W.2d at 40-41. Thus, while Fischer's motion to suppress preserved his right to challenge the validity of the vehicle search under Gant and Overbey, Fischer did not preserve his arguments regarding the validity of his arrest and the subsequent search of his person.
[¶ 15.] Nevertheless, Fischer asserts that our review of his arrest is still proper under the plain error rule. Under SDCL 23A-44-15 (Rule 52(b)), this Court is permitted to notice "[p]lain errors or defects affecting substantial rights ... although they were not brought to the attention of a court." "We invoke our discretion under the plain error rule cautiously and only in `exceptional circumstances.'" Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d at 443 (quoting State v. Henjum, 1996 S.D. 7, ¶ 14, 542 N.W.2d 760, 763). Among other conditions, a defendant asserting plain error must prove the asserted error was prejudicial. State v. Whitfield, 2015 S.D. 17, ¶ 16, 862 N.W.2d 133, 139. "To show such prejudicial error an appellant must
[¶ 16.] Even if Fischer had made the required assertions for review under the plain error rule, it is evident that the alleged error — if there was any — was not prejudicial. Because a showing of prejudice in this case relies on a showing that the circuit court would have excluded the challenged evidence in the absence of the alleged error, any alternate justification for the search necessarily defeats a claim of prejudice. "Whether probable cause [to arrest] exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 593, 160 L.Ed.2d 537 (2004). Consequently, where probable cause otherwise exists to arrest for another offense, "an officer's statement of an unsuitable ground for arrest neither voids the arrest nor a search incidental thereto." State v. Klingler, 84 S.D. 466, 473, 173 N.W.2d 275, 279 (1969) (quoting Klingler v. United States, 409 F.2d 299, 305 (8th Cir.1969)). Even if we accept Fischer's assertion that Officer Mertes did not have probable cause to arrest him for driving with a revoked license, Officer Mertes observed an open container of alcohol — in plain view — inside the vehicle.
[¶ 18.] We next turn to Fischer's assertion that the vehicle search was a
[¶ 19.] Although the State does argue the search was justified under the incident-to-arrest exception addressed in Gant, the State primarily relies on the automobile exception to the warrant requirement as justification for the search. "It is well settled that an officer having probable cause to believe that an automobile which he has stopped contains contraband or evidence of a crime may search the vehicle without a warrant under the automobile exception." Peterson, 407 N.W.2d at 223. Probable cause is defined as "evidence which would `warrant a man of reasonable caution in the belief' that a [crime] has been committed[.]" Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963) (quoting Carroll, 267 U.S. at 162, 45 S.Ct. at 288). After approaching the vehicle, Officer Mertes observed an open container of alcohol between the driver's and passenger's seats. As noted above, possession of an open container of alcohol inside a vehicle on a public street is a Class 2 misdemeanor. SDCL 35-1-9.1. Under the facts of this case, this direct observation of an open container was necessarily "evidence which would `warrant a man of reasonable caution in the belief' that a [crime] ha[d] been committed[.]" See Wong Sun, 371 U.S. at 479, 83 S.Ct. at 413 (quoting Carroll, 267 U.S. at 162, 45 S.Ct. at 288). Therefore, Officer Mertes had probable cause to search "every part of the vehicle and its contents that [might have] conceal[ed] the object of the search." Ross, 456 U.S. at 825, 102 S.Ct. at 2173.
[¶ 20.] Fischer offers no argument against application of the automobile exception. His only answer to the State's primary argument is that the search was invalid because — according to Fischer — it was not authorized under the Gant decision. However, the Gant decision deals primarily with vehicle searches conducted incident to arrest — an exception to the Fourth Amendment's warrant requirement distinct from the automobile exception. See Gant, 556 U.S. at 347, 129 S.Ct. at 1721 (contrasting the scope of searches authorized under the two exceptions). Fischer has not suggested — or offered authority indicating — that the Gant decision disposed of the "specifically established and well-delineated [automobile] exception[]." See id. at 338, 129 S.Ct. at 1716
[¶ 21.] Even if we were not convinced that the search was justified by the automobile exception, we also conclude the search was justified under Gant's incident-to-arrest exception. In contrast to the automobile exception, the incident-to-arrest exception permits a warrantless search of a vehicle "incident to a lawful arrest when it is `reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" Gant, 556 U.S. at 343, 129 S.Ct. at 1719 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 2137, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring in result)).
[¶ 22.] While the language used by the Supreme Court in Gant bears a resemblance to the definition of probable cause, see supra ¶ 20, courts generally agree that the quantum of information required to justify a vehicle search incident to arrest is something less than probable cause. See, e.g., United States v. Rodgers, 656 F.3d 1023, 1028 n. 5 (9th Cir.2011) ("[T]he search incident to arrest exception to the warrant requirement ... appears to require a level of suspicion less than probable cause...."); United States v. Vinton, 594 F.3d 14, 25 (D.C.Cir.2010) ("Presumably, the `reasonable to believe' standard requires less than probable cause, because otherwise Gant's evidentiary rationale would merely duplicate the `automobile exception'....").
[¶ 23.] In Gant, the Supreme Court specifically identified Thornton as one case in which a vehicle search incident to arrest was justified. Gant, 556 U.S. at 344, 129 S.Ct. at 1719. In Thornton, a police officer driving an unmarked police car became suspicious that the driver of another vehicle knew he was a police officer and that the driver was deliberately avoiding pulling up next to him. A check of the vehicle's license plates revealed they were issued to another vehicle. Before the officer could initiate a stop, the driver parked and got out of his vehicle. The officer parked his vehicle, initiated a stop of the driver, and conducted a defensive patdown, which revealed the presence of controlled substances on the driver's person. The officer placed the driver under arrest and searched his vehicle. Thornton, 541 U.S. at 617-18, 124 S.Ct. at 2129. The Supreme Court identified this situation as one in which "the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." Gant, 556 U.S. at 344, 129 S.Ct. at 1719. Thus, Gant seems to authorize a vehicle search incident to the arrest of even a recent occupant of the vehicle when the arrestee is found to have personal possession of a controlled substance. See Thornton, 541 U.S. at 617-18, 124 S.Ct. at 2129.
[¶ 25.] Fischer argues "the record is lacking evidence which, if believed, could be sufficient to sustain a finding of guilt beyond a reasonable doubt as to Possession of Controlled Substance." Fischer was convicted of unauthorized possession of a controlled substance under SDCL 22-42-5, which states: "No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting in the course of the practitioner's professional practice or except as otherwise authorized by chapter 34-20B." (Emphasis added.) Fischer denied that the contraband found in the vehicle belonged to him, and the vehicle itself was titled to someone else. Therefore, according to Fischer, "[t]he State did not prove the knowledge element of the statute."
[¶ 26.] "We review the denial of a motion for judgment of acquittal as a question of law under the de novo standard." Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d at 40. Therefore, we give no deference to the circuit court's determination regarding the sufficiency of the evidence. On appeal, then, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d at 40. "The State may... prove all elements of an offense through circumstantial evidence." State v. Laplante, 2002 S.D. 95, ¶ 30, 650 N.W.2d 305, 312. However, "[v]erdicts cannot be allowed to rest on mere suspicion, or upon a state of facts not shown to exist." State v. Lee, 48 S.D. 29, 35, 201 N.W. 703, 705 (1924) (quoting State v. Meyer, 181 Iowa 440, 164 N.W. 794, 797 (1917)); see also United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir.1991) ("Although the government is entitled to all reasonable inferences supporting the verdict, we cannot sustain a conviction `based on a mere suspicion or possibility of guilt.'" (quoting United States v. Robinson, 782 F.2d 128, 129 (8th Cir.1986))). Therefore, "we will set aside a jury verdict only when `the evidence and the reasonable inferences to be drawn therefrom fail to sustain a rational theory of guilt.'" State v. Guthrie, 2001 S.D. 61, ¶ 47, 627 N.W.2d 401, 420-21 (quoting State v. Hage, 532 N.W.2d 406, 410 (S.D.1995)).
[¶ 27.] In order to meet its burden of proving knowing possession, the State must offer evidence establishing that the accused exercised "dominion or right of control over a controlled substance ...
[¶ 28.] First, citing State v. Jahnz, 261 N.W.2d 426 (S.D.1978), the State asserts that knowledge may be inferred because the methamphetamine was found inside a vehicle controlled by Fischer. In Jahnz, law enforcement officers acting under a warrant found 133 pounds of marijuana after searching the trunk of an automobile owned by the defendant in that case. Id. at 427. In rejecting the defendant's assertion that the State failed to prove knowing possession, we said, "[P]ossession alone suffices to permit the inference that the possessor knows what he possesses, especially[] if it is in his hands, on his person, in his vehicle[,] or on his premises." Id. at 428.
[¶ 29.] Jahnz is not dispositive because it typifies a class of cases to which the present one does not belong. As the owner of the vehicle, the defendant in Jahnz had exclusive access to the trunk of his vehicle. When a defendant has exclusive access to the premises in which the controlled substance is found — in contrast to Fischer's nonexclusive, shared access to the premises in this case — nothing more must be proved for a jury to reasonably infer the defendant knew the controlled substance was present. See Overbey, 2010 S.D. 78, ¶ 28, 790 N.W.2d at 43; Barry, 2004 S.D. 67, ¶ 9, 681 N.W.2d at 92-93; State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973). Such an inference is not automatically reasonable when — as here — the defendant had only joint access to the premises. Barry, 2004 S.D. 67, ¶ 10, 681 N.W.2d at 93 (quoting Reeves, 209 N.W.2d at 22). Unlike the defendant in Jahnz, Fischer did not have exclusive access to the vehicle at issue in this case. To hold that Fischer's nonexclusive access to the vehicle "suffices to show knowledge that it [contained contraband] would essentially render the ... knowledge requirement superfluous and expose individuals possessing [a controlled substance] to strict liability[.]" See United States v. Howard, 214 F.3d 361, 364 (2d Cir.2000). Therefore, Jahnz was merely an application of the exclusive-possession-of-premises inference and is not sufficient — standing alone — to support a reasonable inference of knowledge in a joint-possession-of-premises case like the present one.
[¶ 30.] Similarly, Fischer's knowledge of the methamphetamine's presence in the
[¶ 31.] The State misreads Mattson. Unlike the present case, in Mattson the State sought to "establish knowing possession of the controlled substance under a theory that [the d]efendant had ingested some of the methamphetamine purchased by the occupants of the vehicle." See id. ¶ 56, 698 N.W.2d at 555 (emphasis added). Consequently, we noted that "in the context of a charge of knowing possession of a controlled substance, a positive urinalysis that reveals the presence of a controlled substance in a [defendant's] urine is sufficient in and of itself to support a conviction due to the language of SDCL 22-42-1(1)." Mattson, 2005 S.D. 71, ¶ 54, 698 N.W.2d at 554 (emphasis added). We did not hold that a defendant's refusal to submit to a urinalysis is sufficient in and of itself to support a conviction of knowing possession. Furthermore, SDCL 22-42-1(1)'s definition of a controlled drug or substance "includes an altered state of a drug or substance listed in Schedules I through IV absorbed into the human body[.]" (Emphasis added.) Because a defendant is generally considered to have exclusive access and control over substances on his person, see Jahnz, 261 N.W.2d at 428, the same can generally be said of substances absorbed into his person. Thus, an inference of knowing possession in Mattson was reasonable on the same basis as the inference of knowing possession in Jahnz: the defendant had exclusive access to the premises in which the controlled substance was found. Consequently, while it is reasonable to infer that a defendant with a positive urinalysis knows that methamphetamine is present in his body, it does not follow that it is reasonable to infer that a defendant who refuses a urinalysis knows that methamphetamine is present in a collectable tin hidden under another passenger's seat in a car owned by a resident of another state.
[¶ 32.] Finally, citing Laplante, the State asserts that "evidence of marijuana use renders it more likely that [Fischer] possessed the [methamphetamine] and knew what he possessed." In Laplante, husband and wife defendants were both convicted under SDCL 22-42-10 for maintaining a home in which their sons used, possessed, and sold marijuana, cocaine, and methamphetamine. Laplante, 2002 S.D. 95, ¶ 15, 650 N.W.2d at 309-10. On appeal, we held that the LaPlantes' knowledge of their sons' use, possession, and sale of marijuana in their home was relevant to establishing that the LaPlantes also knew their sons used, possessed, and sold methamphetamine and cocaine in their home. Id. ¶ 38, 650 N.W.2d at 314. This relevancy determination was made in
[¶ 33.] Like Jahnz and Mattson, LaPlante is not dispositive of the present case. Nevertheless, "upon judicial review[,] all of the evidence is to be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Moreover, while two or more facts may be insufficient on their own to permit a reasonable inference of knowledge, the combination of those facts may nevertheless give rise to a reasonable inference of knowledge. Cf. United States v. Arvizu, 534 U.S. 266, 274-75, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002) (rejecting "divide-and-conquer" approach of isolating and discounting individual facts in totality-of-the-circumstances review of probable-cause determinations). Here, Fischer was in control of the vehicle. When asked to do so, he produced the vehicle's registration. He had another illegal substance and paraphernalia in his pocket. When asked to submit to chemical testing, he refused. Although this body of evidence is not overwhelming, it is not so scant as to prevent even a single, rational trier of fact from finding beyond a reasonable doubt that Fischer knew there was methamphetamine in the vehicle he was operating. Therefore, the record contains sufficient evidence to sustain a conviction for knowing possession of methamphetamine, and the circuit court did not err by denying Fischer's motion for judgment of acquittal.
[¶ 34.] Fischer did not properly preserve his argument that Officer Mertes lacked probable cause to arrest him for driving with a revoked license, and the circuit court did not plainly err by denying the motion to suppress because the motion indicated it was based entirely on Fischer's arguments under Gant and Overbey. Regardless, Officer Mertes had other bases upon which to justify a search of Fischer and the vehicle: (1) under the vehicle exception, and (2) under the search-incident-to-arrest exception. Furthermore, Fischer's conviction is supported by sufficient evidence. Therefore, we affirm.
[¶ 35.] ZINTER and WILBUR, Justices concur.
[¶ 36.] SEVERSON and KERN, Justices concur in part, dissent in part.
KERN, Justice (concurring in part and dissenting in part).
[¶ 37.] I concur in Issue 1, but dissent from the majority opinion's conclusion in
[¶ 38.] On appeal, it is our objective to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d 35, 40. While the State may prove all elements using circumstantial evidence, verdicts cannot rest upon mere suspicion or possibility of guilt. State v. Laplante, 2002 S.D. 95, ¶ 30, 650 N.W.2d 305, 312; State v. Lee, 48 S.D. 29, 35, 201 N.W. 703, 705 (1924).
[¶ 39.] The circumstantial evidence considered by the jury in this case in support of the conviction is summarized as follows. Fischer was driving a vehicle that belonged to an out-of-state resident, and Fischer's possession of the vehicle was not exclusive. The owner of the vehicle was not identified, and no evidence was presented regarding Fisher's relationship or involvement with the owner. At the time of Fischer's arrest, he had a pipe containing marijuana residue in his pocket, and he refused a urinalysis. A tin containing paraphernalia with methamphetamine residue was found under the passenger seat of the vehicle. Fischer and the female passenger denied knowledge of the tin. The officers released the passenger without searching her or determining her identity.
[¶ 40.] Fischer's guilt beyond a reasonable doubt cannot be reasonably inferred from consideration of these facts individually or collectively. Other courts, when considering similar scenarios, have found such evidence insufficient to withstand a motion for a judgment of acquittal. In United States v. Aponte, defendants were stopped for a traffic violation and convicted of possession with intent to distribute drugs found inside a cooler in the vehicle's cargo area. 619 F.3d 799, 800 (8th Cir. 2010). Defendants, who did not own the vehicle, argued "the evidence was insufficient for a jury to reasonably conclude [defendants] knew of the drugs[.]" Id. Both defendants lacked criminal backgrounds or warrants, submitted valid identification, and provided nearly identical stories regarding their destination. Id. at 801. Additionally, Aponte testified he did not notice the cooler and did not know it contained drugs. Id. at 803. The court emphasized that in cases where the defendant did not own the vehicle and was in possession of the vehicle for a short time, additional proof was required to show "that the defendant was aware of drugs concealed in the vehicle." Id. at 804. Upon consideration of "all of these circumstances in their totality, [the court concluded the] evidence [was] insufficient to prove [defendants' knowledge] beyond a reasonable doubt." Id. at 809.
[¶ 41.] In State v. Salas, law enforcement stopped defendant's vehicle after receiving a tip he was in possession of cocaine. 820 P.2d 1386, 1386-87 (Utah Ct. App.1991). Two passengers were present in defendant's vehicle, one in the front passenger's seat and one in the backseat. Id. at 1387. Defendant denied possessing cocaine and consented to a search of his vehicle, which uncovered cocaine "in the crack of the backseat on the driver's side, where the bottom of the cushion fits the back." Id. The court found defendant not to be in constructive possession of the cocaine, stating such possession requires "a nexus between the accused and the drug sufficient enough to allow an inference that the accused had both the ability
[¶ 42.] In the present case, no evidence was submitted at trial to establish Fischer's knowledge of the tin containing paraphernalia and methamphetamine residue. Fischer's mere occupancy of the vehicle in "which the drugs [were] found ... especially when occupancy is not exclusive" is insufficient to create the necessary nexus to establish constructive possession. Id. (quoting State v. Fox, 709 P.2d 316, 319 (Utah 1985)).
[¶ 43.] When examining the evidence we consider an actor's "acts, conduct and inferences [that] are fairly deducible from the circumstances surrounding the offense." Laplante, 2002 S.D. 95, ¶ 30, 650 N.W.2d at 312. "Sufficient proof may include incriminating statements or actions accompanying discovery of the illicit substance, finding the substance with or near the accused's personal belongings, and any other circumstances linking the accused to the substance." State v. Wheeler, 2013 S.D. 59, ¶ 10, 835 N.W.2d 871, 873. None of the foregoing types of proof are present in this case. The record does not reflect that Fischer said or did anything incriminating in response to the officers' discovery of the tin containing paraphernalia with methamphetamine residue. Fischer did not appear to be under the influence of drugs or alcohol. The State did not offer any evidence — such as fingerprint analysis — directly linking Fischer to the container. Likewise, the State did not produce any items proved to belong to Fischer that were intermingled with the offending items. With reference to the inference that Fischer refused to submit to a urinalysis because he had used methamphetamine, it is equally fair to presume he did not want to take the test because he had used marijuana or simply wished to invoke his right not to submit to testing.
[¶ 44.] The evidence in this case is so scant that it cannot be said that a rational trier of fact could conclude beyond a reasonable doubt that Fischer knew of the presence of the tin under the passenger's seat in a vehicle he didn't own. To hold otherwise would be to create a strict liability standard for any person found in a motor vehicle with an illegal substance. The evidence in this case merely infers the possibility "that this appellant may have committed this offense. Beyond this possibility, resort must be had to surmise, speculation, and suspicion to establish the appellant's criminal agency in the offense charged. No rule is more fundamental or better settled than that convictions cannot be predicated on such bases." Nguyen v. State, 580 So.2d 122, 123 (Ala.Crim.App. 1991) (quoting Parker v. State, 280 Ala. 685, 198 So.2d 261, 268 (1967)) (emphasis added). I respectfully dissent.
[¶ 45.] SEVERSON, Justice, joins this special writing.