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Constructive Possession – Part 1


This article, which is the first of a two-part series, will review the current state of the law regarding constructive possession – but will also summarize a number of fact specific cases where the courts have either found evidence sufficient or lacking to support convictions based upon a constructive possession theory of criminal liability. The holdings in these cases generally consider the same factors in assessing the sufficiency of the evidence, but the factual conclusions drawn in the cases are sometimes difficult to reconcile. Because the opinions are so fact specific it bears reviewing the facts in these cases. When constructive possession issues arise, a quick reference to fact patterns relied upon by the courts in past cases may be useful.

While the principles of constructive possession apply where contraband is found in both vehicles and in homes or buildings, and while there have been examples where the courts found that mere presence in a motor vehicle is not sufficient to prove knowledge and dominion or control, in most instances, as the following case summaries will illustrate, the close quarters of a motor vehicle, where an accused is in close proximity to the contraband, has gone a long way in convincing the appellate courts that a finding in such circumstances that an accused had both knowledge and dominion or control is more likely to be affirmed.

“Possession” is defined in the Maryland Pattern Jury Instructions as follows:

Possession means having control over a thing, whether actual or indirect. [The defendant does not have to be the only person in possession of the substance. More than one person may have possession of the same substance at the same time.] A person not in actual possession, who knowingly has both the power and the intention to exercise control over a thing, either personally or through another person, has indirect possession. In determining whether the defendant had indirect possession of the substance, consider all of the surrounding circumstances. These circumstances include the distance between the defendant and the substance, whether the defendant had some ownership or possessory interest in the [place] [automobile] where the substance was found, and any indications that the defendant was participating with others in the mutual use and enjoyment of the substance.

MPJI-Cr 4:24

Although this article will concentrate on the sufficiency of evidence of

constructive possession where the accused was located in a vehicle, State v. Taylor

(although not a vehicle case), must be a starting point for such discussions.

In Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997) the Court of Appeals (COA) reminds that in order to convict one of possession of an item based upon a theory of constructive possession, the prosecution must prove, beyond a reasonable doubt, that the person:

• had knowledge of the presence of the item; and

• that person exercised some dominion or control over the item.

“Knowledge” and “dominion and control” are the operative factors in a constructive possession theory of liability. Mere presence or proximity to the item is insufficient, as a matter of law, to support a conviction. Where the item is one which is easily accessible to multiple parties, the prosecution’s burden is even greater to establish that it was the accused, rather the others in similar proximity to the item, who knew of and exercised dominion and/or control over the item.

Knowledge is an essential ingredient of the proof of possession. Dawkins v. State, 313 Md. 638, 649, 547 A.2d 1041, 1046 (1988) (an individual ordinarily would not be deemed to exercise “dominion or control” over an object about which he is unaware. Knowledge of the presence of an object is normally a prerequisite to exercising dominion and control.)

When considering the element of dominion or control, dominion or control does not have to be exercised solely and exclusively by one person and there may be joint possession and joint control in several persons. The duration of the possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of the title.’ Jason v. State, 9 Md.App. 102, 111, 262 A.2d 774, 779 (1970). It is not necessary, in order to be found in joint possession of a contraband drug, that one have a “ull partnership” in the contraband. As an example, it is enough that one exercised such control of a marihuana cigarette as would be necessary to permit one to take a puff upon a marihuana cigarette. Folk v. State, 11 Md. App. 508, 275 A.2d 184 (1971)

The Court of Special Appeals (CSA) and COA have repeatedly identified the factors that the court will look to in determining sufficiency of the evidence to support a conviction for possession of an item, be it drugs, weapons, stolen property or other offenses where possession is an element. These are:

1. Ownership or control of the premises or vehicle

2. Proximity to the contraband or prohibited item

3. Is there evidence of mutual enjoyment or use of the contraband or item

4. Was the defendant in exclusive possession of the vehicle or location where the item was allegedly possessed.

In many of the reported cases, where the court has sustained the sufficiency of the evidence and affirmed a conviction, it has noted that while the evidence may have supported a finding of lack of knowledge and/or the absence of evidence of dominion or control, it has deferred to a fact-finder’s conclusion, in specific cases, as to whether the evidence support an inference of knowledge, dominion and control, even in the absence of direct evidence of same.

Folk v. State, supra and Taylor v. State, infra, are the starting points for this discussion.

Taylor v. State (COA – insufficient evidence)

In Taylor, the COA reversed a conviction for simple possession of marihuana under circumstances which the trial court concluded were insufficient “to draw a reasonable inference that the accused was participating with others in the mutual enjoyment of the contraband.” The significant factors in Taylor were:

(i) Taylor was found in a hotel room in close proximity to the marihuana;

(ii) Taylor knew there was marihuana in the room [although the arresting officer indicated he did not see anyone smoking marihuana];

(iii) Taylor had some possessory right in the premises [or so found the trial court] because he was on the premises sleeping or pretending to be asleep; and

(iv) there were clouds of smoke in the room that smelled like marihuana

Because the evidence showed that Taylor was not in exclusive possession of the premises and because the contraband was secreted in a hidden place not otherwise shown to be within Taylor’s control, a rational inference could not be drawn that the accused possessed the marihuana.

Folk v. State (CSA – sufficient evidence)

A trooper undertook the surveillance of a red Valiant automobile in which Folk was one of six occupants. The lights of the vehicle were off, the motor was off and the windows were tightly shut. As the trooper approached the driver’s side, the left front window was suddenly rolled down and the trooper detected the strong odor of marihuana coming from the closed car. All of the occupants were ordered out of the automobile and placed under arrest. One of the occupants, exiting on the right-hand side of the vehicle, attempted to throw an object into the surrounding grass and underbrush. That object was immediately recovered and determined to be a small black plastic container which contained marihuana. While the evidence did not establish that Folk was ever in direct physical possession of the contraband marihuana, the evidence was clear that some person or persons in that automobile were in possession of the contraband marihuana.

The CSA held that the proximity between Folk and the marihuana could not be closer, short of direct proof that the Folk herself was in exclusive physical possession of the marihuana. Folk, as one of six occupants in a Valiant automobile was, whatever her position in the car, literally within arm’s length of every other occupant of that automobile. The marihuana cigarette being smoked was, at any point in time, within direct physical possession of one of those occupants. Proximity could not be more clearly established. The CSA affirmed the conviction. Folk v. State, supra.

Livingston v. State (COA – insufficient evidence)

In Livingston, the COA concluded that evidence was insufficient which merely established that there were two marijuana seeds on the front floorboard of a vehicle in which Livingston was a back seat passenger.

In Livingston, a state trooper pulled over a vehicle for speeding and, aided by his flashlight, saw two marijuana seeds on the front floor of the automobile and subsequently arrested the driver and two passengers. Other drugs were found on Livingston, the back seat passenger, pursuant to a search incident to his arrest. Livingston challenged the his initial arrest based solely on his proximity to the seeds contending had insufficient cause to believe that a backseat passenger with no possessory interest in the vehicle had dominion and control over the marijuana seeds found on the front floor of the vehicle. The COA agreed holding that “[m]erely sitting in the backseat of the vehicle, Livingston did not demonstrate to the officer that he possessed any knowledge of, and hence, any restraining or directing influence over two marijuana seeds located on the floor in the front of the car.” Livingston v. State, 317 Md. 408, 564 A.2d 414 (1979)

White v. State (COA -insufficient evidence)

White was a passenger in a vehicle stopped for a minor traffic infraction. As the officer approached the vehicle, he smelled an overwhelming pine scent odor which, when considered with what the officer characterized as extremely nervous behavior by the driver, led the officer to request permission to conduct a pat down of the driver. A small bag of marijuana was found on the driver and he was arrested and the trunk of the vehicle subsequently searched. In the trunk there were travel bags belonging to both White and to the driver and a large factory-sealed box that initially appeared to contain pots and pans but once opened contained 194 grams of cocaine. The case against White rested on a circumstantial evidence argument that White was in joint constructive possession of the cocaine in the vehicle’s trunk. Noting that while there was sufficient evidence to find beyond a reasonable doubt that White had knowledge of the presence of the cocaine hidden in the box in the trunk of the vehicle and that, by virtue of being a passenger in the vehicle, he was in close proximity to the cocaine, the record did not establish that he had any possessory right in or control over the vehicle. The COA distinguished the officer’s observations of the nervous behavior of the driver from the behavior of White. The COA concluded there was not sufficient evidence to establish that he exercised dominion or control over the cocaine. Here proximity, even together with possible knowledge of the presence of the drugs, was not sufficient to establish constructive possession in the absence of some specific evidence of the exercise of dominion and/or control over the narcotics. White v. State, 363 Md. 150, 767 A. 2d 855 (2001)

Johnson v. State (CSA – sufficient evidence)

The vehicle in which Johnson was a front seat passenger was stopped based upon a broadcast report of a possible car theft. As the officer approached the vehicle he testified that he smelled a strong odor of marijuana and noticed, in plain view, through the car window what he believed to be marijuana on the gear shifter in a position equidistant between the driver and Johnson. Distinguishing the facts here from the facts in Livingston, the CSA considered as a significant factor that Livingston was a back seat passenger whereas Johnson was not only a front seat passenger. Additionally, there was an odor of burnt marijuana emanating from the vehicle and marijuana was plainly observable on the gear shift cover within arm’s reach of Johnson. This evidence, the CSA concluded, gave the officer probable cause to make a warrantless arrest of Johnson. The CSA noted that in both Taylor and Livingston, the drugs were either in a closed container, not within arm’s reach or otherwise outside the plain view of the accused. Johnson v. State, 142 Md. App. 172, 788 A. 2nd 678 (2002), cert. denied Johnson v. State, 369 Md. 180, 798 A. 2d 552 (2002).

Smith v. State (COA – evidence sufficient)

The COA characterized the question in Smith as whether the evidence was sufficient to sustain the conviction of the lessee driver of a vehicle for transporting a handgun, where the gun was found in the trunk of the car under a jacket belonging to one of the two passengers also in the car. The COA held that the evidence and reasonable inferences therefrom were sufficient to sustain the conviction for the crime of transporting a handgun, additionally holding that, generally, a person’s status as a owner or lessee/driver of a vehicle can support an inference by a fact-finder that the owner or lessee/driver has knowledge of the contents of the vehicle he or she is operating.

Smith was driving a car with two passengers. After he was stopped for speeding, the trooper smelled marihuana and arrested the occupants and then searched the vehicle and when the trooper lifted a jacket in the trunk he found a handgun under the jacket. None of the occupants initially admitted to owning either the gun or the jacket, however, one of the passengers later admitted to owning the jacket. Smith told the trooper that he had rented the vehicle, that he had it for a week, and that he was going to New York to return the vehicle. The COA upheld the trial court’s reasoning that as the driver and occupant of the car, and the one who had rented the vehicle and been in possession of the vehicle for a week, Smith knew of the gun’s presence, and was at least in constructive possession of it. State v. Smith, 374 Md. 527, 823 A.2d 664 (2003)

Neal v. State (CSA – evidence sufficient)

Neal was driving, but not the owner, of a vehicle in which 20.1 grams of cocaine was recovered. Neal argued that the State did not prove that he “exercised dominion and control over the [cocaine] found in the car” because he did not have a possessory or ownership interest in the car and that the evidence failed to show who “actually owned the car.”

The COA held that a legal possessory or ownership interest in the premises or vehicle is not necessary or dispositive as to the issue of dominion and control. The sufficiency issue boiled down to whether the trier of fact could reasonably infer that Neal knew of the presence of the cocaine and further observed that “[d]rivers generally have dominion and control over the vehicles they drive.” The COA held that the status of a person in a vehicle who is the driver, whether that person actually owns, is merely the driver or is the lessee of the vehicle, permits an inference, by a fact-finder, of knowledge, by that person, that there is contraband in the vehicle. The knowledge of the contents of the vehicle can be imputed to the driver of the vehicle.

Here there was significant additional evidence to support of that inference that Neal exercised knowledge, dominion and control over the cocaine which included: 1) Neal was the driver and sole occupant of the vehicle when stopped by the police; 2) Neal was “nervous” when the officers approached the vehicle; 3) that when the officers advised Neal that they were going to search the vehicle, he fled; 4) and that a loaded gun and other drugs, suggesting a relationship to the cocaine, were also in the vehicle at the time of the traffic stop. Neal v. State, 191 Md. App. 297, 991 A.2d 159 (2010)

Other cases where evidence of constructive possession found sufficient

Applying the principles discussed in the already discussed cases, appellate courts have repeatedly sustained fact-finders inference of knowledge, dominion and control in vehicles, even where the defendant has been a non-owner passenger. McDonald v. State, 141 Md. App. 371, 785 A.2d 836 (2001) (McDonald’s presence as a back seat passenger in a vehicle where an officer saw the butt of a gun sticking out from under the front seat, between McDonald’s feet, where he was the only person in the back seat and where he was observed putting his hand between his legs as if to place something on the floorboard was sufficient for the jury to reasonably infer that McDonald possessed the gun and put it there. Although the jury could have drawn an inference more favorable to McDonald, it was not required to do so.); Johnson v. State, 142 Md. App. 172, 788 A.2d 678 (2002) (evidence sufficient where Johnson was passenger in a vehicle where marihuana was found on the gear shifter equidistant between Johnson and the driver, where there was a “overwhelming” and “powerful” odor of marihuana and where another partially burnt marihuana cigarette was found in the ashtray and the marihuana was within arm’s reach of the marihuana.); Larocca v. State, 164 Md. App. 460, 481, 883 A.2d 986, 999 (2005) (evidence sufficient where Larocca was riding as a passenger in a vehicle where there was communal partaking in marihuana and the odor of marihuana was noted by the police as the police followed the vehicle, observed Larocca get out of the vehicle and then return to the vehicle. Police later discovered a white plastic opaque bag recovered under the front passenger seat where Larocca was seated and in an area where Larocca could easily reach. The location and nature of the white bag of marihuana, Larocca’s position in the car, the mutual use of marihuana and the marihuana-focused purpose of the trip on the night in question permitted an inference that Larocca knew of the marijuana’s presence in the car. While proof that contraband is in a person’s plain view or line of sight can be sufficient to show the person had knowledge of its presence, it is not necessary to prove knowledge.); State v. Suddith, 379 Md. 425, 842 A.2d 716 (2004) (presence as a passenger in a stolen vehicle in which a large amount of contraband was found after a police chase and crash where $220 was recovered from Suddith permitted a jury to reasonably infer that the driver of the vehicle would be unlikely to admit an innocent passenger into a stolen vehicle containing a large quantity of contraband.); Neal v. State, 191 Md. App. 297, 991 A.2d 159 (2010) (evidence sufficient where Neal, the driver and sole occupant of a vehicle stopped for speeding, was in vehicle with two “blunts” on the front seat. When asked to exit vehicle, he fled, crashed his vehicle and cocaine and a gun was recovered. Rejecting the notion that because Neal was not the owner of the vehicle and that the evidence may have failed to disclose exactly where the cocaine had been found in the car or whether it was accessible and in plain view, did not bar a finding that he knowingly possessed the contraband, as the status of a person in a vehicle who is “merely” the driver or lessee, and not the owner, permits an inference of knowledge by that person of contraband found in the vehicle.); Ford v. State, 37 Md. App. 373, 377 A.2d 57 (1977) (the mere fact Ford may have been picked up as a hitchhiker did not prevent the jury from finding that he was in joint possession of the marihuana located in a bag on the passenger side floorboard in front of Ford in a vehicle where the odor of marihuana was present.); Gimble v. State, 198 Md. App. 610, 18 A.3d 955, 962-64 cert. denied, 421 Md. 193, 25 A.3d 1026 (2011) (although Gimble did not own the vehicle he was driving and in which drugs were found, the fact that he was the driver and in sole possession of the vehicle permits a fact-finder to reasonably infer that the driver of a vehicle knows its contents, including contraband.)

Final Thoughts

The next article will review decisions regarding sufficiency of evidence to support convictions based upon constructive possession in locations other than a vehicle. A review of those cases will illustrate how the appellate courts have been more cautious in concluding that mere presence in locations such as a home or building is sufficient to permit inferences sufficient to prove constructive possession.

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