If constructive possession is a legal fiction, then joint constructive possession is a double legal fiction. It is not only that you do not actually possess the article in question (and by actual possession, I mean physical occupancy or control over the property). It is that other people – it could be one person, it could be four other people – do not actually possess the same article either.
The key thing, according to this fiction, is that anyone who can be deemed to be in constructive possession of the item first has to know that the item is there. Once that has been established, the government must then prove that the person had both the intent and ability to “exercise dominion and control” over it.
Constructive possession becomes joint constructive possession when “dominion and control” is shared by two or more people. For example, four people sitting around a table with a single firearm on the table in front of them could all be deemed to be in joint constructive possession of that firearm. A husband and wife could both be found to be in constructive possession of a piece of contraband that is recovered from a shared closet.
In Tamara Smith v. United States, 55 A.3d 884 (D.C. 2012), an opinion issued earlier this month by the D.C. Court of Appeals, the police arrived at the defendant’s house to execute a search warrant. The defendant was in the living room when they arrived. Her boyfriend was standing in the hallway. Lying by the bed in the master bedroom was a closed child’s backpack that contained a firearm and ammunition. The question for the Court was whether the defendant was properly convicted of possessing that firearm and ammunition.
The Court begins its analysis with the notion that a jury is “generally entitled to infer that a person exercises constructive possession over items found in his home.” At the same time, the Court points out, the jury is not permitted to base its verdict on mere speculation.
Although constructive possession may be sole or joint, the Court notes, there is a higher standard in cases of joint constructive possession. In that case,
there must be something more in the totality of the circumstances – a word or deed, a relationship or other probative factor – that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the defendant intended to exercise dominion and control over the [contraband], and was not a mere bystander.
There was evidence in this case that the defendant shared the master bedroom with her boyfriend. For example, police recovered identification cards and clothing for both the defendant and her boyfriend in the room. They also found a photograph of the defendant inside an entertainment center next to where the backpack was, and mail addressed to the boyfriend was recovered from the drawer of a cabinet in which additional ammunition was also found.
The first question in this case was whether the defendant even knew about the contraband in the closed backpack. Yes, it may well have been her bedroom, one she shared with her boyfriend. But the items were not lying in plain view on top of the dresser. Nor were they found in a stationary piece of furniture, like a dresser or bureau, suggesting that they may have been there for a while. Instead, they were recovered from a closed back pack which, by its very nature and design, is portable.
Even if the government could demonstrate that the defendant knew of the contraband, the government would still need to prove that she intended to exercise “dominion and control” over it. After all, you can know about something without having any intention to do anything with it. This is what the Court refers to as the “mere bystander” phenomenon.
Finally, because the backpack was equally accessible to either the defendant or the boyfriend and was found in a room that was occupied by both, the government was required to prove “something more” in the totality of circumstances analysis. Specifically, it needed to prove some “word or deed” or “relationship or other probative factor” to connect the contraband to the defendant.
Admitting that this was a close call, the Court points to “two significant factors” in conducting the requisite “something more” analysis, either of which could have just as easily supported the exact opposite conclusion. First, the court notes that the presence of the brightly-colored back pack in the bedroom was “conspicuous.” Second, the Court points out that the other logical possessor of the back pack – the defendant’s boyfriend – had been away for a week prior to the date in question.
Whether or not the boyfriend had been away for a week prior to the search was not nearly as important as the fact that he was present on the day the warrant was executed. It would have taken him only a moment to place the back pack there, and considering that back packs are normally used to carry items from one place to another, the jury could just as easily have concluded that the boyfriend had used the back pack to carry his belongings on his trip and then thrown it on the floor of the bedroom upon his return, with the defendant completely unaware of its contents.
The court notes that there were no children in the house to whom ownership of the “children’s back pack” could be ascribed, while ignoring its earlier mention of the boyfriend’s 15-year-old son who lived with the couple. A 15-year-old is a child. Children do, regrettably, possess firearms and ammunition. And if there was anyone to whom this “brightly-colored children’s back pack” could have been attributed to, it should have been this child.
Finally, the court attaches no significance to the fact that additional ammunition was recovered from a dresser in the bedroom that clearly belonged to the boyfriend. If the boyfriend owned the ammunition in the dresser, wouldn’t it also be more likely that he also owned the ammunition in the back pack? This is even apart from our rather sexist assumptions that tend to place firearms with males.
Given the standard of review, the Court had no option but to defer to the jury’s conclusions, provided there was a rational basis for those conclusions. The problem in this case is that, with no support in the record for those conclusions, the jury could only have arrived at its verdict through “mere speculation.” By refusing to overturn the verdict, while ignoring ample evidence and arguments in support of a contrary conclusion, the Court has taken the already tenuous concept of joint constructive possession and stretched it still further.