Officers testified that Mr. Rivera told them that he knew something was in the car, which was the reason Mr. Rivera said he ran after being handcuffed. The State presented sufficient evidence that Mr. Rivera knew of the contraband in his car, and therefore, that he constructively possessed it.
State v. Rivera
First District Appellate Court
Hamilton County, Ohio
June 12, 2026
Why is this case important?
State v. Rivera is important because it provides a clear modern example of how prosecutors can prove constructive possession when drugs are not found on a defendant’s person. The First District reaffirmed that prosecution does not need to prove actual physical possession of narcotics. Instead, possession may be established through circumstantial evidence showing that the defendant knew the drugs were present and had the ability to exercise dominion or control over them.
Background
On December 31, 2024, Cincinnati Police Officers Henderson and Brown observed Mr. Luis Angel Rivera’s Honda Accord with expired plates and heavy tint driving slowly on Henshaw Avenue in the Camp Washington neighborhood, a known drug trafficking area. Officer Henderson activated his police lights. Mr. Rivera drove for approximately ten seconds before turning into the lot of a Shell gas station and parking at a pump. During the traffic stop, Mr. Rivera and his passenger—codefendant Maurice Wilson—were removed from the car so the K-9 unit could conduct an open-air sniff of the car.
Mr. Rivera – Handcuffed – Flees – Face Plants
As Officer Henderson placed the handcuffs on Mr. Rivera, he informed Mr. Rivera that the K-9 alerted on the car. Mr. Rivera attempted to flee on foot (despite being handcuffed) but fell face-first onto the pavement and was apprehended.
AI Created image.
Thirty-Seven Grams of Meth – 10 Grams of Crack – Five Cell Phones
Officers discovered 37.699 grams of methamphetamine and 10.615 grams of crack cocaine between the passenger seat and the door, plus five cell phones and $615 in cash in the middle console. The cash was made up of mostly $20 bills. Mr. Rivera told the officers that the money was from cashing his paycheck. The search also revealed that Mr. Wilson was carrying over $1000 in cash.
Indicted and Jury Trial
Mr. Rivera was indicted alongside Mr. Wilson. Mr. Rivera’s matter proceeded to a jury trial.
Tinted Windows – Expired Tag – Slow to Stop
Officer Henderson testified that he was working the “District 3 power shift” in Camp Washington with his partner, Officer Kyle Brown, when they initiated a traffic stop based on Mr. Rivera’s car having excessively tinted windows and an expired license plate. Officer Henderson stated that the car was “slowly driving, idling down Henshaw Street, which is . . . dimly lit . . . in Camp Washington.” He explained that it is an area where “we’ve made several arrests” and where drug traffickers “typically sell narcotics.” Officer Henderson stated that Mr. Rivera’s car was “extremely slow to stop” and it did not stop for “approximately a block and a half to two blocks.”
Nervousness – Labored Breathing – Visibly Shaking
Officer Henderson explained that he asked the occupants to roll down their windows because he was unable to see through the window tint. He testified that he called for a K-9 unit due to the “totality of the circumstances,” including the area Mr. Rivera was driving in, that he was slow to stop after the police lights were activated, and the “extreme” nervousness of both occupants of the car as exhibited by their “labored breathing” and “visibly shaking with their hands.” Officer Henderson had Mr. Rivera and Mr. Wilson exit from the car so the K-9 could be deployed.
Mr. Rivera Fled on Foot in Handcuffs
Officer Henderson testified that Mr. Rivera and Mr. Wilson were detained after the dog alerted to the car, and that Mr. Rivera fled on foot while in handcuffs but was apprehended.
[A] bag of narcotics mixed with both crack cocaine and crystal meth.
Officer Henderson testified that he then searched the passenger side of Mr. Rivera’s car and found “a bag of narcotics mixed with both crack cocaine and crystal meth.” Officer Henderson testified that he was confident that the bag contained cocaine and methamphetamines based on his experience and training in narcotics and the way it was packaged. Officer Henderson identified the physical evidence and the lab report confirming the nature of the substances found.
Mr. Rivera Claims One of the Five Phones
Officer Henderson testified that Mr. Rivera told the officers to look in the car because he thought that “there was something in there,” which was why he attempted to run from police. Officer Henderson did add that Mr. Rivera later retracted those statements, saying that he did not know what was in the car. Officer Henderson also explained that Mr. Rivera told the officers that the $615 in cash that was found in the console and one of the five phones found belonged to him. Officer Henderson stated that, judging from the crumpled state of the bills, the cash appeared to be related to drug trafficking, and that having multiple phones is a further indication of trafficking.
Mr. Rivera Claimed that the $615 was from Cashing the Paycheck
On cross-examination, Officer Henderson testified that Mr. Rivera and Mr. Wilson were in earshot when Officer Dean reported to Officer Brown that the dog alerted on the car. He stated that Mr. Rivera had been handcuffed and was about to be placed in the police car when he ran. Officer Henderson recalled Mr. Rivera telling him that the $615 in cash that was found in the console was from Mr. Rivera cashing his paycheck.
Officer Brown’s Testimony
Officer Brown testified that he was working patrol with his partner, Officer Henderson, when they both observed Mr. Rivera’s car in the middle of the road. Officer Brown activated the police lights.
Officer Brown stated that Mr. Rivera should have pulled over on Colerain Avenue instead of pulling into the Shell gas station. He explained that he told Mr. Rivera that he would be detained because the drug dog alerted on the car, and Mr. Rivera began to “tense up” and was “looking for an out.” Brown’s body-worn-camera (“BWC”) footage was played, which showed Officer Brown informing Mr. Rivera that he was being detained while handcuffing him, and Mr. Rivera ran a short distance after being handcuffed but fell face-first onto the pavement.
Officer Brown’s testimony echoed that of Officer Henderson regarding the search of Mr. Rivera’s car, and that they suspected Mr. Rivera and Mr. Wilson of drug trafficking based on the multiple cell phones and the amount of cash that they had on hand. Officer Brown testified that Mr. Rivera stated that the car belonged to his girlfriend and that the cash in the console was from his paycheck. Officer Brown, however, was dubious, given the crumpled state of the $20 bills.
[J]ust look in the vehicle, you’ll find something.
Officer Brown testified that he decided to charge Mr. Rivera due to the time of night when Mr. Rivera was driving, being slow to stop for officers, Mr. Rivera’s and Mr. Wilson’s nervousness, the K-9 hit on Mr. Rivera’s car, and the crumpled-up cash found in the console, and because Mr. Rivera told the officers that he did not know Mr. Wilson, yet was driving Mr. Wilson around. He stated that Mr. Rivera’s attempt to flee alone “was another guilty conscious thing” along with telling Officer Henderson to “just look in the vehicle, you’ll find something.”
Mr. Rivera Claimed “had any contacts whatsoever with these drugs.”
At the conclusion of the testimony of the State’s witnesses and admission of exhibits, Mr. Rivera moved an acquittal pursuant to Crim.R. 29. He asserted that the State presented no evidence to prove that he “had any contacts whatsoever with these drugs.” The State responded that Mr. Rivera “appeared to have proceeds from drug [transactions] that he was in control over.” The trial court denied the Crim.R. 29 motion.
Convicted – Sentenced Four to Six Years
Mr. Rivera was convicted of aggravated possession of drugs and possession of cocaine. He was acquitted of the drug-trafficking charges. The trial court sentenced Mr. Rivera to an aggregate indefinite four-to-six-year prison term.
Appeal
Possession of Controlled Substance – O.R.C. §2925.11
O.R.C. §2925.11(A) provides, “No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.” R.C. 2925.01(K) defines “possession” as “having control over a thing or a substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.”
Established Case Law – Constructive Possession
Possession may be actual or constructive. State v. Rainey, 2023-Ohio4666, ¶ 32 (1st Dist.), citing State v. Hankerson, 70 Ohio St.2d 87, 91 (1982), syllabus. Constructive possession may exist when an individual, conscious of an object’s presence, “is able to exercise dominion and control over an item, even if he does not have immediate physical possession of it.” Id. at ¶ 33, quoting State v. Devaughn, 2020-Ohio-651, ¶ 32 (1st Dist.), citing Hankerson at the syllabus. As this court has held, constructive possession can be established with “evidence that a defendant was both aware of the presence of illegal drugs and had the power to control them.” Id., quoting Cincinnati v. Stirsman, 322 N.E.2d 282, 283 (1st Dist. 1974). Constructive possession also exists when a person exercises or has the power to exercise dominion and control over a known object—even if the defendant did not have physical contact with it. Id. at ¶ 34. Circumstantial evidence is sufficient to establish dominion and control over an object. State v. Thomas, 2003-Ohio-1185, ¶ 9 (1st Dist.).
The officers were dubious about the true origin of the $615 found in the middle console.
Based on the totality of the circumstances, the State presented sufficient evidence to support Mr. Rivera’s convictions for aggravated possession of drugs and possession of cocaine. The officers were dubious about the true origin of the $615 found in the middle console of Mr. Rivera’s car, as it was “crumpled” or “crinkled,” consistent with the appearance of cash used in drug-trafficking transactions, and multiple phones were found in the car. Mr. Rivera claimed not to know Mr. Wilson yet chose to drive Mr. Wilson around in an area known for drug trafficking.
Constructive possession can exist when drugs are found in a vehicle, even when the defendant is not the only person in the vehicle.
Although Mr. Rivera was the driver and the contraband was found tucked between the passenger seat and door, the State did not have to show that Mr. Rivera had physical control over the drugs. Officers testified that Mr. Rivera told them that he knew something was in the car, which was the reason Mr. Rivera said he ran after being handcuffed. The State presented sufficient evidence that Mr. Rivera knew of the contraband in his car, and therefore, that he constructively possessed it. See Thomas at ¶ 10 (constructive possession can exist when drugs are found in a vehicle, even when the defendant is not the only person in the vehicle); State v. Mitchell, 2002 Ohio App. LEXIS 1706, *7-8 (8th Dist. Apr. 18, 2002) (the defendant-driver had three passengers, but was convicted of possession because police recovered a PCP cigarette from the front seat on the passenger’s side and defendant-driver stated that the passengers were sharing the cigarette); State v. Murrell, 2003-Ohio-2068, ¶ 17-19 (1st Dist.) (defendant-driver constructively possessed the cocaine found in the trunk of the car he was driving as defendant was frequently permitted to borrow the car, $1000 in cash was found in the trunk along with the cocaine, and the cash found in the trunk was secured with a black rubber band in the same fashion as the cash found in the paper bag behind the driver’s seat, which defendant admitted to owning).
Mr. Rivera had made statements to the officers that he knew there was contraband in his car.
Mr. Rivera had made statements to the officers that he knew there was contraband in his car. The jury found the officers’ testimony credible. The record contains nothing to suggest that the jury lost its way.
Mr. Rivera’s first and second assignments of error are, therefore, overruled.
Conclusion and Holding
Mr. Rivera’s statement to police showed that he knew of the contraband in his car, which means that he constructively possessed it. Accordingly, his convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. The trial court’s judgment is affirmed.
Information for this article was obtained from State v. Rivera, 2026 – Ohio – 2209.
State v. Rivera, 2026 – Ohio – 2209 was issued by the First District Appellate court and is binding in Hamilton County, Ohio.
Lessons Learned
Constructive Possession – The Constructive Possession doctrine was established by the Supreme Court of Ohio in 1982. That court carved out a two-part Constructive Possession test; 1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control; 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982). The most challenging element is to prove that the person was conscious of the object. In this case Mr. Rivera made a statement and fled from the scene while handcuffed as Officer Henderson testified “Mr. Rivera told the officers to look in the car because he thought that “there was something in there,” which was why he attempted to run from police.”.
Unprovoked Headlong Flight – On January 12, 2000 the U.S. Supreme Court issued Illinois v. Wardlow, 528 U.S. 119 (2000) and held that four factors led to a reasonable investigative detention of Mr. Sam Wardlow in Chicago on September 9, 1995: 1) The area was a high crime area, 2) During the narcotics raid the officers expected to find lookouts and drug salesmen, 3) Sam Wardlow ran at the very sight of the police officers; and 4) Sam Wardlow had headlong flight – flight that was immediate, intentional and purposively evasive. In this case, Mr. Rivera was handcuffed and still fled! Mr. Rivera attempted to flee after learning the canine had alerted and after being placed in handcuffs. The fact that he fled immediately after being told about the canine alert strengthened the State’s argument that he knew contraband was inside the vehicle. Of course, running while handcuffed is very difficult as demonstrated by Mr. Rivera when he face planted and was not difficult restrain.
Totality of Circumstances – Officer Henderson did not rely on a single factor when requesting the canine. He articulated multiple observations: a known drug-trafficking area, delayed compliance with the stop, extreme nervousness, labored breathing and visible shaking. A totality of circumstances is based on all of the facts, not a singularity of any one fact.
Pre-Sent Arms! Cincinnati Police Officers Henderson, Brown and the Hamilton County Prosecutors Office should be highly commended for the investigation, prosecution and successful appeal defense of Mr. Rivera. Well done!
Does your agency train on Constructive Possession?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!