Sorting Out the Law of Constructive Possession
by: Rjohnson • March 20, 2011 • no comments
I have no idea what "possession" is. You'd think I'd know. It comes up in a tremendous number of criminal cases and I'm a criminal defense attorney. Unfortunately, the statutes are not particularly clear, and the cases just make it worse.
"Possess" means: "to have physical possession or otherwise to exercise dominion or control over property." ORS 161.015(8). There are a few idiosyncratic statutory definitions applicable to specific crimes. The crime of being a felon in possession of a firearm includes additional language: a person who "owns or has in the person's possession or under the person's custody or control" a firearm commits the offense. ORS 166.270. Also,"possess[ing] or control[ing]"child-pornography is forbidden. ORS 163.686. However, even with the slightly different statutory language, the analysis seems to be the same for all possession offenses. See, e.g., State v. Ritchie, 349 Or 572 ___P3d___ (2011); State v. Vinh Ba Nguyen, 229 Or App. 719, 212 P3d 1284 (2009) (discussing various sources for the definition of "possession.")
Physical possession is easy. If you have a gun in your hand, or your belt, or probably a backpack, you possess it. In discussing the meaning of the term, Casey refers to it as "actual physical control." 346 Or at 60. See also State v. Fries, 344 Or 541, 546, 185 P3d 453 (2008) ("As a general rule, 'to have physical possession' of property means to have bodily or physical control of it."). But see State v. Williams, 117 Or 238, 243 P 563 (1926), (taking a drink from a liquor bottle did not prove possession of the bottle.) State v. Gordineer, 229 Or 105, 111, 366 P2d 161 (1961) (possession of liquor requires an intent "to possess full control over the liquor with the right to enjoy its consumption to the exclusion of others."
Both Williams and Gordineer precede the 1971 criminal code revision to the definition of possession and may no longer be good law. Assuming they aren't, then physical possession is simple. Constructive possession, however, is an incoherent mess. In State v. Casey, 346 Or 54, 203 P3d 202 (2009) the court explained:
"constructive possession expands the scope of possession statutes to include instances where actual possession cannot be shown but where there is a strong inference that actual possession did exist at one time. Given the nature of constructive possession as an outgrowth of actual possession, it follows that the closer that the indicia of constructive possession to past or future actual possession, the more likely that constructive possession exists."
346 Or 60. In Casey, the defendant was charged with being a felon in possession of a firearm. The firearm had been left in defendant's residence by a guest. 346 Or 56 et seq. In reversing the conviction, the Supreme Court observed that a guest retains constructive possession of property brought into another's home. Id. at 61.
Ritchie, 349 Or 572, explains that "constructive possession of a thing (i.e., * * * dominion or control over it) cannot be established merely by showing that the person has a practical ability" to control it. 349 Or 583 (emphasis in original). See also State v. Barger, 349 Or 553 ___P3d___ (2011), a companion case to Ritchie.
But that is not consistent with earlier cases such as State v. Miller, 238 Or 411, 414, 395 P2d 159 (1964), in which the driver of a car was convicted of possessing guns in the car. The gun was between the driver and a passenger during a long drive, and the court held that the defendant was guilty because he knew that the guns were available for his use.
Miller might be reconciled with Ritchie because a driver has more control over objects in the car. But Ritchie was about possession of child-pornography in a computer, and it's hard to see that a driver of a car has more control over the car's contents than a computer user has over the computer's contents. For more obfuscation, see State v. Connally, 339 Or 583, 591, 125 P3d 1254 (2005) (driver of a car possessed a fanny pack in the backseat near a passenger for purposes of an inventory); State v. Marsh, 78 Or App 290, 294, 716 P2d 261 (1986) (driver possessed a gun that he knew was in his companion's purse in the trunk); State v. Wells, 147 Or App 125, 935 P2d 447 (1997) (evidence that the defendant was a passenger in a pickup truck was insufficient to prove that the defendant possessed a rifle in the pickup, although the facts were messier than that.)
In State v. Oare, 249 Or 597, 439 P2d 885 (1968), the defendant and a companion were discovered in a bathroom where marijuana was being flushed down a toilet, but the defendant was standing behind his companion and might just have been watching. The Oare court described it as "an extremely close question," but said the evidence was not sufficient to show possession.
Under Oare, being near an object is not the same as possessing it. But it takes very little more to get from proximity to control. Being in a car and knowing about an object is apparently sufficient. C.f., Connally, 339 Or 583, Miller, 238 Or 411; Marsh, 78 Or App 290; State v. Leyva, 229 Or App 479, 211 P3d 968 (2009) (defendant, passenger in a car on a long car trip, possessed marijuana-filled garbage bags in the back seat; he told some lies to the police, supporting an inference that he was part of the criminal venture). Being in a car without knowing about the objects is not possession. State v. Fry, 191 Or App 90 80 P3d 506 (2003) (syringes containing methamphetamine possessed by other passengers and on the car floor).
Mere presence in a residence or other building is not sufficient. State v. Daniels, 348 Or 513, 234 P3d 976 (2010) (apartment owner did not possess methamphetamine in his girlfriend's purse); Casey, 346 Or 54; Oare 249 Or 597. But that is only when the defendant could plausibly be an innocent spectator. State v. Miller, 196 Or App. 354, 103 P3d 112 (2004) (complex facts, but, generally, defendant and his co-defendants were observed entering an active methamphetamine lab.)
The courts struggle with this rule, too. For instance, in the absurd Court of Appeals decision in Casey, the court said that when the defendant tried to stop the police from entering his residence, he possessed a firearm left in the residence by a guest. State v. Casey, 215 Or App 76, 168 P3d 315 (2007). That opinion also cites Marsh, 78 Or App at 294 for the proposition that "[t]o prove control, the state must show that the firearm was available for defendant's use." That is what Marsh says, but the defendant in Marsh was the driver of the car containing the property, which courts clearly consider a significant factor. Any physical object near you is "available" for your use, but mere presence isn't supposed to be enough.
Some earlier cases have said, without really explaining, that "the right to control" an object is constructive possession of it. E.g., State v. Weller, 263 Or 132, 501 P2d 794 (1972) (cited with approval in Richie). I don't know what "the right to control" means, and the court doesn't explain; the defendant in Weller didn't have it. (His roommates possessed marijuana, but Mr. Weller did not.) The right to control sounds a lot like ownership. Ownership is not included in the general statutory definition of possession from ORS 161.015(8). But the Felon in Possession statute also forbids felons from 'owning' firearms. I don't know of any cases talking about "ownership" as distinct from possession or constructive possession, but the ordinary meaning includes some situations not covered by either of the other two.
Suppose for example, that, on your birthday, I give you a vial of cocaine. I set it on the table in front of you, and say: "Here. Cocaine. It's a gift." I think that you probably own the cocaine, but you don't 'possess' it, Thus, you're not guilty of a crime, which makes sense because you've done nothing. ORS 161.095 provides that "[t]he minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing." "Voluntary act" requires that defendant have ability to choose whether to take particular action. State v. Tippetts, 180 Or App 350, 43 P3d 455 (2002). No act, so no crime.
If however, you have a felony conviction, maybe for possession of the cocaine, and the next year I give you a gun in exactly the same manner, then, under the statute, you have committed the crime of being a felon in possession of a firearm. You own the gun, because I gave it to you, but there is no culpable act. I don't know whether there is anything you can do to avoid owning the gun if I give it to you, which sounds like a hard, unresolved property-law question. I've never seen this set of facts come up and it's maybe a little tortured. But if a gun-owner is arrested and stays in jail until he's convicted of a felony, I'm not sure how to avoid being a felon in possession. I have seen that issue come up and muddle the issues surrounding possession, but I don't know if pre-conviction ownership is sufficient to prove post-conviction possession. The Casey court notes in dicta that that "owning" an object leads to exercising dominion and control over it. 346 Or at 59.
I have a couple more thoughts, mostly things I'll look at in my next possession case. Evidence that directly proves constructive possession looks a lot like evidence that circumstantially proves actual possession. The Casey court noted that constructive possession is intended for situations when actual possession probably occurred recently. Consider seeking an election or otherwise trying to clear up whether the state is offering direct evidence of constructive possession or circumstantial evidence of earlier, actual possession. (Or both, but you probably shouldn't suggest that answer.) The difference might be crucial if, for example, it's a commercial drug offense and evidence of the CDO factors is weak or nonexistent for the times of the constructive possession. C.f. State v. Acree, 205 Or App 328, 134 P3d 1069 (2006) (state had argued for both actual and constructive possession; new trial granted as a result of newly-discovered evidence that applied only to the constructive-possession theory.)
Most of the cases above are MJOA cases, with an attendant lousy standard of review. The facts in these cases are muddy, and it's worth seeking elections or other clear statements of the state's theory, being careful in your requests for jury instructions, asking for Boots instructions, and asking for MJOAs on each state's theory individually. C.f. State v. Pena, 183 Or App 211, 214 n. 3, 51 P3d 646 (2002) (noting, but not resolving, question whether unreviewable JOAs can be granted on theories rather than crimes).
The Supreme Court cases seem to be better than the Court of Appeals cases, especially recently. In light of the recent helpful decisions in Richie, Barger, Daniels, and Casey, the law seems to be moving in a good direction. Take advantage while it lasts.
