– Many criminal cases allege possession of some sort of contraband. Whether the contraband is marijuana, a handgun, cocaine, etc… the legal analysis is generally the same.

– There are two types of possession:

(1) Actual Possession

– The individual actually possesses the contraband.

– Examples:

– Minor is holding a beer can

– Defendant is holding a marijuana

– Defendant has handgun in his pocket

– In these types of cases, the issue of possession will generally not be arguable (except for the “not my pants” argument which I have never seen the defense successfully win.)

(2) Constructive Possession

– Individual has the intent and capability to maintain dominion and control over the contraband.

– Under the old case law, relatively little evidence was required to show constructive possession. Under the more recent case law, it is much harder for the State to prove construction possession.

– I suggest reading Cahisa Jones and Brent in their entirety. I have probably cited Cahisa Jones more than any other single case.

– Constructive Possession elements:

(1) incriminating statements by the defendant,

(2) attempted flight or furtive gestures,

(3) location of substances like drugs in settings that suggest manufacturing,

(4) proximity of the contraband to the defendant,

(5) location of the contraband within the defendant’s plain view, and

(6) the mingling of the contraband with other items owned by the defendant.

Case Law

– “[Officer] received a dispatch concerning suspicious activity near a residence on 19th Street. Upon arriving at the scene, [Officer] noticed a car parked in a driveway behind a vacant house, next to an alley. [Officer] considered the driveway to be private property. Jones was inside the car, reclining in the front passenger seat and clearly intoxicated. There was a can of beer and a mostly empty whiskey bottle in the car. In the middle of the back seat of the car, approximately two feet away from Jones, was a handgun lying on top of a pile of clothes. The car was owned by and had been driven that evening by Leroy DeJourney, Jones’s cousin.” Id. t 1097. Defendant was charged with and convicted of possession of a handgun without a license and public intoxication.  “Circumstantial evidence must do more than merely tend to arouse suspicion of guilt in order to support a conviction.” Id. At 1097.  “Possession of a firearm or other contraband may be either actual or constructive. Actual possession occurs when a defendant had direct physical control over the item. Id. Constructive possession occurs when the defendant had the intent and capability to maintain dominion and control over the item.” Id. At 1098.  “Proof of dominion and control of contraband so as to support a finding of constructive possession may be established by: 

(1) incriminating statements by the defendant, 

(2) attempted flight or furtive gestures, 

(3) location of substances like drugs in settings that suggest manufacturing, 

(4) proximity of the contraband to the defendant, 

(5) location of the contraband within the defendant’s plain view, and 

(6) the mingling of the contraband with other items owned by the defendant.” Id. at 1098-1099.  

– “Jones’s conviction rested upon at most two of these factors: plain view and proximity.” Id. at 1099.  A passenger in the front seat, without more, is not deemed to possess a gun located on the floor behind the driver. And a passenger is not deemed to carry a gun located in the trunk.” Id. at 1099.  The handgun conviction is reversed. Cahisa Jones v. State, 881 N.E.2d 1095 (Ind. App. 2008).

– An off-duty officer observed what he believed to be an illegal drug transaction, and contacted on duty officers. Officers saw a person they knew leaning in the driver’s side window. The officer told the driver of the suspect vehicle to stay parked, but the driver began to slowly drive away. Police activated the emergency lights and pursued the suspect vehicle at a low rate of speed. Police saw the driver throw out her window what “appeared to be a partially smoked cigar, possible [sic] a blunt.” After about seventy yards, the vehicle stopped just inches from a parked vehicle. The officer “felt like they were trying to discard something.” The officer clarified that the suspect vehicle stopped so close to the parked vehicle that it was “difficult to even see” what, if anything, occurred. The suspect vehicle continued moving again, and soon stopped a second and final time. The officer approached the vehicle and smelled “fresh” marijuana coming from inside the suspect vehicle, “as if they were just smoking recently.” The officer returned to the area where the driver stopped just inches from the parked vehicle. He recovered a plastic baggie containing what he suspected to be and what later tested positive for marijuana, and then arrested Brent for possession of marijuana. At trial, Officer Lushin explained: “I didn’t actually witness him discard [the baggie of marijuana]. . . . I just felt like since they stopped and they were close to a vehicle and, for [the baggie of marijuana] to have come out it would have had to have come out the passenger’s side window.” Id. at 5-6. Officers did not recover what Officer Lushin believed to have been a marijuana cigarette thrown from the driver’s side window. The court found the evidence insufficient. Brent v. State, 957 N.E.2d 648 (Ind. App 2011). 

– IMPD received information that narcotics were being sold out of an apartment. A confidential informant went there to purchase cocaine. Thirty minutes later, police executed a search warrant at that address. Police found cocaine in plain view and in a pouch. Police found keys and more cocaine outside the window of the apartment. Paraphernalia was found in a back room. Three people were in the apartment. Moore was laying on a couch when the police entered. Moore appeared intoxicated and disoriented. Moore was four feet from the table with the drugs in plain view. The Court of Appeals found the evidence was insufficient. Moore v. State, 613 N.E.2d 849 (Ind. App. 1993).


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