“Constructive Possession” is of the Drugs, Not The Space Wherein They Are Found

State v. Hunter, Minn.Ct.App., 12/22/2014.  Officers who were on a drug surveillance detail saw Mr. Hunter, the driver of an SUV, holding what one of these officers believed to be a bag of crack cocaine in the area between the two front seats.  This same officer also saw Mr. Hunter drop the bag of crack cocaine onto the passenger seat, whereupon the passenger pushed the bag onto the floorboard.

The state charged Mr. Hunter with a second degree drug crime.  Among other instructions, the state asked the trial judge to tell the jury that “constructive possession exists when an object is not on the person or in his immediate presence but it is in a place subject to that person’s conscious dominion and control.”  Despite the objection from Mr. Hunter’s lawyer, the court gave that instruction.  The jury convicted Mr. Hunter.

On appeal, Mr. Hunter said that this instruction misstated the law on constructive possession.  Specifically, he said that this instruction allowed the jury to convict him if he exercised dominion and control over the space where the cocaine was found – the SUV – rather than over the cocaine, itself.  The court of appeals agrees with Mr. Hunter and awards him a new trial.

Now, neither the law nor the pattern jury instruction is a model of clarity.  Back in 1975, the supreme court said:

a jury may find that a defendant constructively possessed a controlled substance “in a place to which others had access [and] there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.”

The pattern jury instructions are no more helpful.  It says:

In order to find the defendant possessed , it is not necessary that it was on the defendant's person. The defendant possessed if it was in a place under the defendant's exclusive control to which other people did not normally have access, or if found in a place to which others had access, defendant knowingly exercised dominion and control over it.]

So, is “it” the place where the drugs are or is “it” the drugs themselves?  “It” is the drugs themselves.  The court of appeals cites to several other cases in which the supreme court does make that clear.  Among them is State v. LaBarre, 292 Minn. 228, 195 N.W.2d 435 (1972); State v. Robinson, 517 N.W.2d 336 (Minn. 1994); and State v. Dickey, 827 N.W.2d 792 (Minn.Ct.App. 2013).  In this last case the court said:

a police officer has probable cause to arrest a suspect for constructive possession of a controlled substance when . . . there is a strong probability that the suspect was exercising or had exercised dominion or control over the controlled substance.

Mr. Hunter also complained about all the drug testing business over at the St. Paul crime lab.  But, having awarded Mr. Hunter a new trial on the instruction error, it didn’t need to get into all that.  The court did uphold the denial of Mr. Hunter’s motion to suppress evidence.  The court agreed with the trial court that the officers had the requisite reasonable suspicion justifying the officer’s approach of the SUV and the seizure:

Officers were present in the parking lot because it was known as a location for drug transactions. Although this alone does not constitute reasonable suspicion of criminal activity, see State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), a police officer also testified that he observed Hunter’s SUV enter the parking lot and park in a location that, according to the officer’s training and experience, indicated preparation for a drug transaction. The officer also observed the sedan enter the parking lot and park in a location consistent with the same inference of a potential drug transaction. The officer then observed the sedan’s driver and passenger leave the still-running vehicle, enter Hunter’s SUV, and begin talking with him. Although Hunter is correct that these actions may also be consistent with innocent explanations, when taken together with the police officers’ training and experience, they are sufficient to constitute reasonable suspicion justifying the officers’ approach and investigatory seizure. . . .Having developed reasonable suspicion justifying an investigatory seizure, the police officers were justified in opening the car door even before viewing the cocaine. See State v. Ferrise, 269 N.W.2d 888, 890 (Minn. 1978) (holding that officer safety and other concerns authorize police officers to open car doors during an investigatory seizure).