Armstrong v. Superior Court

• Decision Date: 24 January 1990
• Docket Number: No. D010830,D010830
• Citation: 217 Cal.App.3d 535,265 Cal.Rptr. 877
• Court: California Court of Appeals Court of Appeals
• Parties: Donald William ARMSTRONG, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent. The PEOPLE, Real Party in Interest.

Page 877

265 Cal.Rptr. 877

217 Cal.App.3d 535

Donald William ARMSTRONG, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent The PEOPLE, Real Party in Interest.

No. D010830.

Court of Appeal, Fourth District, Division 1, California.

Jan. 24, 1990.

As Modified on Denial of Rehearing Feb. 21, 1990.

Francis J. Bardsley, Public Defender, Richard P. Siref and Evelyn W. Goldman, Deputy Public Defenders, for petitioner.

No appearance for respondent.

Edwin L. Miller, Jr., Dist. Atty., Thomas F. McArdle and Paul M. Morley, Deputy Dist. Attys., for real party in interest.

BENKE, Acting Presiding Justice.

Defendant Donald William Armstrong, petitioner herein, was arrested on a charge of possessing a controlled substance for sale in violation of Health and Safety Code section 11378. The arrest grew out of a controlled purchase during which he paid for the narcotics but never received actual physical possession of the contraband. The question petitioner raises is whether under such circumstances he can be said to have constructively possessed the narcotic. He seeks a writ, arguing the trial court erred in denying his motion to dismiss the charge. The People respond that the defendant had fulfilled all commercial obligations respecting the sale and his resulting right to the contraband constituted constructive possession. We conclude that neither the existence of a police controlled setting for the purchase nor the existence of an agreement to purchase the contraband are determinative of a finding of constructive possession. We further conclude there is no evidence in the record before us that petitioner exhibited control over or right to control the contraband. Thus we grant the writ.

BACKGROUND

The relevant facts are not in dispute. During the first week of July 1989, petitioner began negotiating with undercover police officer John Heggestuen to purchase three pounds of methamphetamine for over $6,000 per pound.

Acting in accord with plans made with petitioner, Heggestuen arrived at a designated motel in Chula Vista. The controlled substance was concealed under the spare tire of Heggestuen's car. Following some preliminary discussion, petitioner told Heggestuen he did not have the necessary cash in his possession but had to get it from his partner. He requested Heggestuen provide a sample of the contraband for his partner to examine. Heggestuen agreed and gave him about one-half ounce of the substance. They made arrangements to meet at the same location later that afternoon. Before departing, petitioner showed Heggestuen an assortment of collectible stamps which he wished to "get rid of."

Later that day when petitioner met with Heggestuen, he told the officer his partner had not approved of the quality of the methamphetamine and thus he did not wish to make the purchase. The officer thanked him and told him to call if he wished to make other purchases. The next day petitioner called and asked to meet Heggestuen.

On July 7, 1989, petitioner told Heggestuen he wished to trade one pound of methamphetamine for his collection of stamps. Heggestuen agreed, even though the value of the stamps was unknown.

When Heggestuen and petitioner met to make the exchange, Heggestuen opened the back hatch of his blazer and petitioner placed the box of stamps in the back of the car. Heggestuen then took a one-pound bag of methamphetamine from the back of the car. As he was about to remove it from the car in order to hand it to petitioner, other officers at the scene moved in and arrested petitioner. At the preliminary hearing, Heggestuen testified he was not "going to ... let a pound of methamphetamine walk away." There is no indication Heggestuen intended to prevent physical delivery of the contraband to petitioner.

ANALYSIS

The issue presented to us is whether a defendant may be held to be in constructive possession of contraband where he has entered into and fulfilled all terms of an agreement to purchase the contraband from government agents who have not yet handed the goods to him and who, once the goods are delivered, do not intend to permit the defendant to leave the premises with the contraband.

Any discussion of the concept of "possession" must be premised by the acknowledgment that it is surely among the vaguest of all vague terms with which those who draft legal principles must work. (State v. Strutt (1967) 4 Conn.Cir. 501, 236 A.2d 357, 359-360.) We focus here on but one aspect of this concept, constructive possession.

The rule defining constructive possession is easily stated. Constructive possession exists when a defendant "maintains control or a right to control the contraband." (People v. Showers (1968) 68 Cal.2d 639, 643-644, 68 Cal.Rptr. 459, 440 P.2d 939.) Less clear are the concepts of "control" and "right to control."

Early cases have held an accused may be deemed to have the same possession as any person actually possessing the narcotic where the accused "retains the right to exercise dominion and control over the property." (People v. Showers, supra, 68 Cal.2d at p. 644, 68 Cal.Rptr. 459, 440 P.2d 939, italics added; see also People v. Blunt (1960) 241 Cal.App.2d 200, 204, 50 Cal.Rptr. 440; People v. Graves (1948) 84 Cal.App.2d 531, 534-535, 191 P.2d 32.) Other cases have held that where the contraband is in the actual possession of a third party, the accused may be held to be in constructive possession where the accused has an "immediate right to exercise dominion and control over the narcotics." (People v. Francis (1969) 71 Cal.2d 66, 71, 75 Cal.Rptr. 199, 450 P.2d 591; People v. White (1958) 50 Cal.2d 428, 431, 325 P.2d 985.) More recently, the California Supreme Court, citing its decisions in both People v Showers and People v. Francis, has held constructive possession may be shown by establishing the accused "maintained some control or right to control over contraband in the physical possession of another." (People v. Rogers (1971) 5 Cal.3d 129, 134, 95 Cal.Rptr. 601, 486 P.2d 129, italics added; see also People v. Sinclair (1933) 129 Cal.App. 320, 322, 19 P.2d 23.) ¹

For purposes of drug transactions, the terms "control" and "right to control" are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offender's capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband. (See People v. Sinclair, supra, 129 Cal.App. 320, 322, 19 P.2d 23; see also State v. McCoy (1989) 116 N.J. 293, 561 A.2d 582, 586; State v. Sherry (1983) 233 Kan. 920, 667 P.2d 367, 379; United States v. Disla (9th Cir.1986) 805 F.2d 1340, 1350; Rodella v. United States (9th Cir.1960) 286 F.2d 306, 311.)

Because the totality of circumstances will determine whether a defendant has exercised the requisite control over contraband in the hands of another, we conclude the nature of the sale here (i.e., the controlled...