Tulsa Attorney Blog10th Circuit Reverses Oklahoma Constructive Possession Conviction

Circumstantial Evidence Left Reasonable Doubt

constructive possession Oklahoma

When can you be convicted for drugs found in someone else’s suitcase?

An Oklahoma driver convicted in federal court on a possession of a controlled substance with intent to distribute charge won his freedom back when the U.S. Court of Appeals for the 10th Circuit overturned the conviction.

The April 22, 2015 decision said a jury could infer guilt based on arguments that the man knew his passenger was carrying 14 bricks of marijuana and about an ounce of methamphetamine in a duffel bag. Yet the evidence was insufficient, the court said, to find guilt beyond reasonable doubt.

Federal prosecutors had relied on a constructive possession theory to convict the driver. The passenger who loaded the duffel bag into the car was convicted of possessing the drugs. The bag contained a receipt with the passenger’s name on it. The passenger’s conviction was affirmed on appeal.

To convict the driver of possession with intent to sell and a second charge of aiding and abetting, prosecutors had argued the driver was present when the passenger loaded the car. Prosecutors argued the driver knew the passenger was bringing numerous heavy bags for a short trip. They also alleged the driver knew the passenger lied to his mother about why they were borrowing her rental car.

Small amounts of marijuana found in the car separately from the packaged drugs, aluminum foil, scales and the smell of marijuana contributed to the government’s claim the driver knew about the bulk drugs in the duffel bag.

The smaller amounts of drugs, however, were stored in small containers that did not reveal their contents. At trial, the government argued the smell of marijuana in the car indicated the driver knew there was marijuana present.

An odor of marijuana, however, only showed the driver might have smoked marijuana, the 10th Circuit concluded. Likewise, aluminum foil found near the driver’s belongings was only evidence of possible drug use, and not evidence of intent to sell nor of knowledge there were enough drugs in the car to sell.

On appeal, the 10th Circuit noted prosecutors misinterpreted trial testimony to conclude the driver was present when the passenger lied to his mother about why he wanted to borrow the car. That conversation had taken place in a phone call. There was no evidence the driver overheard the call.

There was no evidence the driver was planning only a short trip, which would have made the passenger’s heavy bag suspicious, the court concluded. And although prosecutors argued both men must have been together when the car was loaded, even if they were, there was no evidence the driver knew what was inside the passenger’s luggage.

The 10th Circuit likewise deconstructed several other anecdotal bits of testimony prosecutors had strung together to infer the driver was involved in the passenger’s plans to transport and sell drugs.

Constructive Possession Means Knowledge and Control

The prosecutor’s constructive possession case typifies theories often used to convict defendants who did not actually possess drugs, guns or stolen property.

In Oklahoma courts, juries are instructed that a person who “knowingly has the power and the intention at a given time to exercise dominion or control over a thing” is in constructive possession of the item. Mere proximity to the item is insufficient to prove possession.

Federal law relies on similar principals. A person must have knowledge and control of an item to be in possession of the item.

Circumstantial evidence can be used to prove constructive possession, Oklahoma jurors are instructed. Each item of circumstantial evidence relied upon to substantiate constructive possession must be proven beyond a reasonable doubt. All facts and circumstances taken together must establish that the defendant had knowledge and control of an item.

If proven, constructive possession is no different than actual possession. A smoldering marijuana cigarette found in a console between a driver and passenger, along with the smell of marijuana and an officer’s testimony that each appeared to have red, watery eyes might persuade a court both individuals were in possession of marijuana for consumption.

Drugs found in a piece of luggage along with items belonging to the driver, in a vehicle the driver owns, are more likely to persuade a jury of constructive possession than items in someone else’s luggage, in someone else’s car, driven by a potentially unwitting driver.

Prosecutors will nonetheless likely continue to bring weak constructive possession cases to court. Prosecutors bet taxpayers resources on the possibility a jury will be sympathetic to prosecutors. They rely on the chance a defendant’s defense lawyer will not be persuasive, a defendant will not have resources to appeal a bad conviction or may just give up and accept a plea deal.

Oklahoma Constructive Possession Defense

When you are charged with possession of any illegal item based on a theory of constructive possession, it is important that your defense attorney attack elements of the circumstances prosecutors allege. A defense attorney can also attack the overall theory that the circumstances prove you knew about and had control of the item.

If you are charged with possession of a controlled substance, possession of a firearm, possession of stolen property or any charge that relies on a constructive possession theory, contact a Tulsa criminal attorney. For a free consultation with a Tulsa defense lawyer, call Wirth Law Office at (918) 879-1681 or send your question using the form at the top of this page.

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