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Constructive Possession – Part 2


This is the second of a two-part series reviewing appellate decisions discussing the factors and circumstances the appellate courts have identified as significant when reviewing the sufficiency of evidence necessary to support convictions for the constructive possession of contraband or other items. In the first article the focus was on the factors discussed in reported cases where the contraband or item was located in a vehicle. This article discusses constructive possession occurring within a premises.

In the first article, Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997), a case occurring in a hotel room, was reviewed as it reminded us that to support a conviction on a constructive possession theory, the prosecution must prove that the defendant (i) had knowledge of the presence of the item; and (ii) that person exercised some dominion or control over the item.

Smith v. State (evidence insufficient)

We jump from Taylor v State in 1995, a case in which Taylor and 4 other people were found in a marihuana smoke filled room in a Days Inn in Ocean City, Maryland under circumstances which the COA found insufficient to support a constructive possession theory of conviction to 2006 and Smith v. State, a case where the operative facts were described by Judge Harrell as:

“[r]eminiscent of a scene from a Cheech & Chong movie where Baltimore City police officers, on 6 December 2006, executed a search warrant on a dwelling at 1932 Lanvale Street where the occupants on one floor were found shrouded in a haze of marijuana smoke. Despite the appearance of the police, [Smith], one of those present, behaved as though everything remained “groovy.” Smith was seated in a chair at a table within arm’s reach of a smoldering marijuana blunt and next to another chair over which was draped a jacket with fifteen baggies of marijuana in one of its pockets.”

Smith v. State, 415 Md. 174, 177, 999 A.2d 986 (2010)

In Smith proximity and knowledge were found sufficient to support a conviction for possession of marihuana. Taylor and Smith provide a good contrast of the types of circumstances that may influence how appellate courts analyze sufficiency questions. Smith distinguishes its holding from that in Taylor first by summarizing the facts in Taylor. The record in Taylor established only that “Taylor was present in a room where marijuana had been smoked recently, that he was aware that it had been smoked, and that Taylor was in proximity to contraband that was concealed in a container belonging to another.” Continuing, the COA stated that although Taylor had a possessory interest in the hotel room, he was not in exclusive possession of the room and its contents and the drugs were “secreted in a hidden place not otherwise shown to be within [Taylor’s] control. Accordingly, a rational inference could not be drawn that he possessed the controlled dangerous substance. The COA in Taylor concluded by holding that:

“Taylor’s presence in a room in which marijuana had been smoked, and his awareness that marijuana had been smoked, cannot permit a rational trier of fact to infer that Taylor exercised a restraining or directing influence over marijuana that was concealed in personal carrying bags of another occupant of the room.” Any finding that he was in possession of the marijuana was based solely on “speculation or conjecture.” Accordingly, we held that the evidence was insufficient to support his conviction.”

In Smith, in affirming the conviction, the COA found significant that not only was Smith in close proximity to the known marijuana in the blunt, the lit and partially-consumed marijuana blunt was in [Smith’s] view but that the blunt was accessible easily to him, and it was reasonable to infer from the circumstances that he was engaging in the mutual use and enjoyment of the marijuana. The COA concluded that the inferences made by the jury in convicting Smith were supported by the evidence and that “[t]hese inferences are the very type of inferences that juries are charged with making-to make findings of fact based on the evidentiary facts and their common sense reasoning.” The COA further rejected, as “not relevant,” a consideration as to whether it also may have been reasonable to infer that Smith was merely an innocent bystander as the jury had determined otherwise. The COA deferred to the jury’s finding that Smith had knowledge of and exercised dominion or control over the marijuana.

Judge Green dissented in Smith and in so doing highlighted the danger of a holding that essentially says that knowledge and mere presence is sufficient to support a conviction. Judge Green summarized his view quoting, in part, with approval from Mr. Mackey [a South Park character] that –

while “[d]rugs are bad,” the law imposes no legal duty, as opposed to moral duty, to stop others from using drugs, or to run away from people who are using drugs. It is unreasonable to infer from Smith’s proximity to others who are or may have been using marijuana that Smith possessed marijuana on the basis of his association. Thus, because the State has not presented any indicia of Smith’s restraining or direct influence over the marijuana blunt, I would reverse the judgment of the Court of Special Appeals.”

While the facts in Smith and Taylor seem similar in many respects, the failure to prove that Taylor knew of the location and presence of the drugs of which he was convicted (despite the clouds of marihuana smoke in the air) was differentiated from Smith’s apparent knowledge that the drugs were present in that they were in his direct presence. Upon review of other constructive possession cases, this distinction does not always seem to explain the results in all cases.

Garrison v. State (evidence insufficient)

The need to prove something more than mere presence or proximity to contraband was discussed in Garrison v. State, 272 Md. 123, 321 A.2d 767 (1974). In Garrison, the accused’s husband was found attempting to flush heroin down the toilet at the time that a search warrant was being executed. The COA found the evidence insufficient to support a conviction of the wife where, although she shared a residence with her husband, she was not shown to have been involved in selling the drugs that were found in the residence. This was so even though the evidence established that the wife had old needle marks on her arms (estimated to be 10-14 days old) and that she had a possessory interest in the premises. The COA noted that the wife and her husband may well have jointly participated in the distribution of heroin, but on the record there was no substantial evidence offered which showed directly or supported a rational inference that the wife exercised either actual or constructive dominion or control – solely or jointly with her husband – over the 173 glassine bags of heroin seized while being discarded by the husband.

Garrison‘s holding suggests that proximity to and knowledge of the presence of contraband and even a possessory interest in the premises where the contraband is located is insufficient to support a conviction on a constructive possession basis without some evidence that proves that the accused exercised dominion or control over the item at issue.

Pearson v. State (evidence sufficient)

In Pearson v. State, 126 Md. App. 530, 730 A.2nd 700 (1999) the evidence was held to be sufficient where it consisted of facts showing that there was a controlled delivery of a box of marijuana to Pearson’s apartment that was signed for by Pearson’s roommate who signed Pearson’s name as Pearson entered the room. Immediately after the package was delivered, Pearson tried to stop the delivery driver (an undercover detective), but was unsuccessful in doing so. Shortly thereafter Pearson’s apartment was searched and the package of marijuana was discovered unopened near the front door. In addition, the officer seized 5 bags of boxes of plastic baggies, 2 boxes of plastic wrap and a large digital scale that was recovered from beneath Pearson’s bed. Noting that the courts and other states have generally concluded that the mere fact that a package containing controlled substances is received in a controlled delivery or through the mail is insufficient to establish evidence of the knowledge of the contents of the package, the presence of a large number of baggies, the large scale found in Pearson’s bedroom and the fact that the sender of such a large amount of contraband “would be careful to place the correct address on the package” all caused the CSA to conclude that there was sufficient evidence to establish not only Pearson’s knowledge of the contents of the box, but to establish the requisite dominion and control over the controlled substances. In Pearson there were factors clearly proven beyond mere proximity including not only an ownership interest in the premises, but also evidence that Pearson had in his bedroom paraphernalia that was consistent with that of narcotics distribution activity.

Moye v. State (evidence insufficient)

In Moye v. State, 369 Md. 2, 796 A. 2nd 821 (2002) the COA reversed the CSA holding evidence insufficient that established only that Moye had been staying in a house and that he had, for some undetermined period of time, been present in the dwelling’s basement where drugs were found inside open or partially open drawers. It noted that no drugs were found on Moye when he was arrested and that Moye had not been tested for drugs at the time of his arrest. The CSA had held that Moye’s “residence at a house in which the marijuana and cocaine were found in plain view”, combined with his presence in the specific area the drugs were located, was sufficient evidence to affirm Moye’s conviction. The CSA attempted to distinguish the facts in Moye’s case from Taylor and the cases cited in Taylor on the basis that those cases involved factual situations where controlled substances were located in a closed container or outside the plain view of the accused.

The COA reversed Moye’s conviction rejecting a constructive possession conviction characterized by the COA as based strictly upon Moye’s proximity to controlled substances. While emphasizing that a valid conviction could be based solely upon circumstantial evidence, the COA cautioned that “it cannot be sustained on proof amounting only to strong suspicion or mere probability”. The COA found that there was insufficient evidence to show that Moye exercised dominion or control over the narcotics, noting that Moye had no ownership or possessory right in the premises where the drugs or paraphernalia were found. Although there was testimony that Moye was “living at the house”, there was insufficient evidence to establish how long he had been at the home and one could not conclude that Moye had any ownership or possessory right to or interest in the home. The record failed to establish Moye’s proximity (or lack thereof) to the drugs at the time that he was in the basement where the drugs were found. The COA held that there was no reasonable inference could be drawn that Moye was participating with others in the mutual enjoyment of the contraband.

Parker v. State (evidence insufficient)

In Parker v. State, 402 Md. 372, 936 A.2d 862 (2007), Parker was convicted of the unlawful possession of a firearm found in a second floor hall. The COA reversed, holding that as in Moye, nothing in the record established Parker’s ownership of or a possessory interest in the home and the evidence did not show whether Parker was residing in the home at the time of the search of the residence or simply visiting an person who did live there. There was more evidence in Moye, where the evidence was found insufficient, even though the State had established that Moye was residing in the home and had been on the same floor as the contraband. In Parker there is even less evidence to support Parker’s conviction. The State failed to establish that Parker had any proximity to the handgun found in a three story home, where the gun was found on the second story and where nothing in the record indicated where the police observed Parker in the home at the time the gun was located, whether he had access to the second floor, whether he had ever been on the second floor, whether the handgun was in plain view or even how long Parker had been in the house.

In reversing the conviction, the COA concluded that the record failed to contain evidence supporting a reasonable inference that Parker had ever seen the gun, had the opportunity to see the gun, or was aware of it. With no established interest or residence in the house, it could not reasonably be inferred that Parker was cognizant of all of the house’s contents.

Leach v. State (evidence insufficient)

Stephen Leach was tried jointly with his brother, Michael Leach at a bench trial at which the essential question was whether Stephen constructively possessed the PCP and paraphernalia found in a one-bedroom apartment on the second floor of a rowhouse in Baltimore City. State v. Leach, 296 Md. 591, 463 A.2d 872 (1983). The COA found the evidence was not sufficient.

The trial court found “[t]he evidence in this case [to be] abundantly clear that Michael Leach was the occupant, possessor of the apartment ….” As to Stephen Leach, the trial court, in finding the evidence sufficient to convict Stephen Leach on a constructive possession theory explained it ruling stating that:

[b]ased on the evidence in the case, primarily the evidence of Mr. Stephen Leach’s access to the apartment, the fact he had the key to the apartment, the fact he had at one point the motorcycle registered at the apartment, the fact that he gave this apartment as his address at the time of the arrest, I believe there is sufficient evidence to justify a … finding of guilty [of] … possession of Phencyclidine, and, in addition, I find that this evidence is buttressed by the … photograph in evidence bearing the date December, 1979 ….[a photograph with an unknown individual and the Leach brothers in the background and a notation on the back of the photograph which said “John Potter holding greens” – “greens” being described by a narcotics officer as PCP]

The COA rejected the trial court’s sufficiency analysis. It stated that inasmuch as the trial court had found that Michael Leach was the occupant of the premises, such a finding precluded an inference that Stephen had joint dominion and control with Michael over the entire apartment and over everything contained anywhere in it. Even though Stephen had ready access to the apartment, the COA concluded that it could not be reasonably inferred that he exercised restraining or directing influence over PCP in a closed container on the bedroom dresser or over paraphernalia in the bedroom closet and even if one assumes that the scales and magnifier found in plain view in the kitchen at the time of the search were always kept there, still those items were intrinsically innocuous and only become significant by association with drugs or cutting agents. Stephen Leach was walking his dog a mile and half from the premises when the search of the premises was conducted.

Handy v. State – evidence sufficient

In Handy v. State, 175 Md. App. 53, 930 A.2d 1111 (2007), the evidence was held to be sufficient to convict Handy even though a total of eight adults were found in the residence at the time of the raid and even though Handy did not have any possessory interest in the premises, noting that Handy was in the kitchen at the time of the raid, a kitchen that was described as small and that he was within arms’ reach of four firearms as well as drugs and paraphernalia all of which were in plain view from Handy’s location. There was a smell of marihuana in the residence and a narcotics officer opined that the circumstances present at the time of the raid were of such a nature as to indicate that the premises were being used as the basis for a drug operation. Handy countered and offered testimony that he had only been at the residence for 2-3 minutes before the raid.

The CSA held that the fact that Handy did not have a possessory or proprietary interest in the premises was not a dispositive factor. While characterizing the case as a “close case,” it concluded that the jury could properly have chosen to disbelieve Handy’s explanation for his presence and infer from the evidence that he was in constructive possession of the firearms, drugs and paraphernalia.


There is no bright line to be drawn from a review of the constructive possession cases. It is worth remembering that these are sufficiency cases. Simply because a trier of fact on a particular set of facts chose to draw an inference that an accused exercised dominion and control over an item does not mean that was a required conclusion. On the other hand, when the question is sufficiency, either on appeal or at an argument on a motion for judgment of acquittal, cases such as Smith, Handy and Pearson support the proposition that the trier of fact should be permitted to draw inference of guilt even though an alternate inference might also be reasonable.

The major factors in these constructive possession cases that seem to control the courts’ holdings are presence, proximity, knowledge and whether there are others present on the premises or with equal access to the contraband or items at issue. In cases where there is presence and proximity, but where the items were not visible or the evidence does not establish that the accused had reason to know of the item’s presence, the courts generally have concluded that such evidence is insufficient to support a finding of guilt. Where there is evidence that the contraband or item was in plain view and within close proximity to the accused, even where there may be a total absence of direct evidence of the accused’s possession of the item and where the accused may have no possessory or proprietary interest in the premises and even where the evidence may suggest that the accused’s presence has been limited in duration at that location, such presence, proximity and knowledge has been more often than not held sufficient for the trier of fact to infer an accused’s dominion and control over the contraband or item.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney