State v. Cann

• Decision Date: 01 October 1975
• Docket Number: No. 56266,56266
• Citation: 319 So.2d 396
• Parties: STATE of Louisiana v. Freddie Lee CANN.
• Court: Louisiana Supreme Court

Page 396

319 So.2d 396

STATE of Louisiana v. Freddie Lee CANN.

No. 56266.

Supreme Court of Louisiana.

Oct. 1, 1975.

Mack J. Marsh, Davenport, Files & Kelly, Monroe, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-respondent.

DIXON, Justice.

The defendant, Freddie Lee Cann, was charged by bill of information with the crime of possession of a controlled dangerous substance, marijuana, in violation of R.S. 40:966. He entered a plea of not guilty, and was tried and convicted of possession of marijuana on March 11, 1975. He was sentenced to pay a fine of $250.00 and court costs, or, in default thereof, to serve thirty days in the parish jail. We granted certiorari to review the correctness of the trial judge's overruling of defendant's motion for a directed verdict. We now reverse.

On May 28, 1974 members of the Ouachita-Morehouse Narcotics Strike Force raided an apartment in Monroe to execute a previously obtained search warrant. The officers encountered resistance at the door by one of the occupants and had to force their way into the apartment. The defendant was subsequently found in a bedroom, behind locked doors. The officers, after bringing all the persons present in the apartment¹ to the living area, began to search the premises, which resulted in their finding a quantity of marijuana in the kitchen² and some gleanings in the garbage outside the apartment. No marijuana was found on the defendant or in the bedroom where he was found. The State contends there was evidence of constructive possession, therefor the trial judge properly overruled the defendant's motion for a directed verdict.

The Louisiana jurisprudence has established that one need not actually possess the controlled dangerous substance to violate the prohibition against possession thereof, constructive possession being sufficient. In State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971), we held:

'A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it.'

This statement of a legal principle, however, fails to explain, or illustrate what facts must exist before constructive possession can be proven.

First, the term 'constructive possession' is a term of legal art, describing the situation in which a person, not in physical possession of a thing, can, nevertheless be considered to be in legal possession of the thing.

However, the mere presence of someone in the area where the controlled dangerous substance is found, or the mere fact that someone knows the person who is in actual possession of the controlled dangerous substance is insufficient to constitute constructive possession by that person. In United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973), the court said:

'. . . By the same token, mere presence in the area where the narcotic if discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession. . . .'

The United States Court of Appeals for the Third Circuit reached the same result in United States v. Davis, 461 F.2d 1026, 1036 (3d Cir. 1972):

'On the other hand mere proximity to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property, is insufficient to support a finding of possession. See, e.g., United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701 (1971); Arellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962); United States v. Mills, 293 F.2d 609 (3d Cir. 1961).'

The same result should obtain in prosecutions under R.S. 40:966. In order to convict a person on the basis of constructive possession, something more than mere presence in the area where the drug is found or mere association with the person in actual custody of the drug must be shown. Our own jurisprudence guides us in this determination.

In State v. Knight, 298 So.2d 726 (La.1974), 1974), the evidence showed that one Poole was approached by Chambley and asked if he would like to buy some marijuana. At this time, the defendant Knight was in a parked car belonging to Chambley. Poole contacted police, and a set up was arranged in the park. At this meeting, the defendant Knight arrived with Chambley and sat on a bench some feet away from the Poole-Chambley transaction. After preliminary negotiations, Chambley called Knight over, telling him to bring his 'lunch,' whereupon Knight handed Chambley a brown bag containing the marijuana. Chambley and Knight then left in the same car and were apprehended together. In response to a motion for a directed verdict on the grounds that the State failed to prove guilty knowledge, this court held:

'From a reading of the record, we conclude there was some evidence that this defendant, Knight, had knowledge that the brown paper bag contained marijuana when he handed it to Chambley for the sale to Poole. Chambley and Knight were together when Chambley originally approached Poole; they were again together for the meeting in the park; Chambley called upon Knight to deliver to him the bag containing the marijuana for purpose of the sale; Knight handed Chambley the bag from which the marijuana was produced with Knight in close proximity; Knight and Chambley departed in the automobile together; they were also together when apprehended.' (298 So.2d 726, 728, 729).

In State v. Williams, 250 La. 64, 193 So.2d 787 (1967), the evidence showed that members of the New Orleans Police Department, after keeping the apartment of defendant Williams, a well-known drug addict, under surveillance for drug traffic, obtained a warrant to search the premises. When the officers knocked on the door announcing their presence, they observed one of the defendants, Hazel Jones, go immediately into the kitchen and return, at which time defendant Bartholomew opened the door to let the police officers in. They observed that Bartholomew appeared to be under the influence of drugs. Their search revealed heroin hidden in the living area and the kitchen, along with narcotics paraphernalia, such as hypodermic needles. Based on this evidence, a finding of constructive possession was upheld. The State had shown, inter alia, (1) this apartment was a frequent place for drug trafficking; (2) the defendants were found in an area where drugs were subsequently discovered; (3) one of the defendants appeared to be under the influence of drugs; (4) one of the defendants rushed into the kitchen when the police knocked, and drugs were subsequently found in the kitchen. Of further significance is the fact that Williams, the tenant of the apartment, was not present when the other three were arrested, leading to the inference, at least, that persons other than Williams had ready access to the apartment.

In State v. Porter, 296 So.2d 302 (La.1974), 1974), the defendant was convicted of possession of marijuana, based on a finding of constructive possession. In that case, the evidence...