A wallet found in a home is not enough proof that he lives there for constructive possession


In 2014, James McGlothin was under surveillance by the Coastal Narcotics Enforcement Team. McGlothin met with a criminal informant. Thereafter, a search warrant was issued for the home where the meeting took place. Upon execution of the warrant, members of the narcotics team entered the home and found no one there.

Inside they found that the home contained two bedrooms. There was women’s clothing in one bedroom. In the other bedroom, the agents found a man’s wallet on a dresser. The wallet contained McGlothin’s identification card, social-security card, bank card, and several casino player’s cards. There were receipts in McGlothin’s name inside a dresser drawer. They also found a loaded Titan .25 semiautomatic handgun inside the pocket of a man’s jacket that was hanging inside the closet.

During the search, a woman arrived at the home. She identified herself as the homeowner and McGlothin’s grandmother. She informed the agents that her granddaughter, McGlothin’s sister, lived in the home. The woman contacted McGlothin via cell phone and placed him on the line with an agent. McGlothin informed the agent that he would arrive at the home within ten to fifteen minutes, but he did not. He was ultimately caught and arrested.

McGlothin was convicted of being a felon in possession of a firearm and sentenced to 10 years. On appeal, he argued he was not in possession of the firearm. MCOA agreed with McGlothin and reversed.


A. McGlothin didn’t own home and no evidence he lived there

During the trial, a special agent testified that the home’s owner was unknown prior to the execution of the search warrant. The agent also testified that McGlothin’s grandmother came to the home while the officers were searching the premises. She indicated that she owned the home and that her granddaughter lived there.

Constructive possession allows the prosecution to establish possession of contraband when evidence of actual possession is absent. There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular contraband and was intentionally and consciously in possession of it.

Constructive possession may be shown by establishing that the item involved was subject to McGlothin’s dominion or control. The owner of the premises where the contraband is found is rebuttably presumed to be in possession of the contraband but that presumption can be overcome.

In Evans, Martha Ingram owned the trailer where the gun was found so she was rebuttably presumed to be in possession of the firearm. However, Evans, who did not own the trailer, was found to be in constructive possession of the firearm. This is because he lived at the trailer, had equal access to the firearms, and handled the gun on a regular basis. Thus, the rebuttable presumption was overcome. MCOA affirmed this case.

In our case, the State argues that McGlothin’s wallet and the receipts in the drawer were sufficient evidence to prove that McGlothin lived in the home. None of these documents listed McGlothin’s address as 514 Jefferson Street, which was the address of this home. Instead, the identification card and a receipt from the circuit clerk’s office listed McGlothin’s home address as 258 Magnolia Street in Biloxi, Mississippi. We find that this evidence offered against McGlothin is distinguishable from Evans. There was no testimony that McGlothin lived or stayed overnight in the home, that the clothes in the closet belonged to him, or that he had handled the firearm in the past. There was also no testimony that McGlothin’s fingerprints were found on the gun.

In Gavin, a search warrant was issued for a business after a criminal informant was sent to meet with the defendant inside the business. After a search, officers located several weapons, and the defendant was charged with multiple counts of possession of a weapon by a convicted felon. On appeal, there was evidence that the defendant handled one of the guns at an earlier time, but no other evidence connected him to the weapon.

We held in Gavin that being in a closed area such as a vehicle or a room with contraband does not by itself permit the inference of dominion and control. If the accused is the owner of the premises, or if he is the exclusive user for some extended period of time, or if there are additional incriminating circumstances, then the inferences might be permissible. Gavin did not own the store and we found no additional incriminating circumstances so his conviction was reversed.

Here, the State asserts that McGlothin was observed standing on the home’s front porch six days before the warrant was executed. This fact alone does not indicate that McGlothin had dominion or control over the residence, any particular room in the home, or even the jacket where the gun was found. There was no testimony that he owned the home or resided there. The State offered no evidence to establish when the firearm was placed in the pocket of the jacket or any evidence that McGlothin had ever worn the jacket. Finally, the state could not connect the firearm to McGlothin through fingerprints. There was simply no competent evidence offered to establish that McGlothin had dominion or control over the residence.

B. Proximity

In Affleck, we said that proximity to the contraband is a factor, but is not determinative. Police arrived at an apparent crime scene and found Affleck standing near the shed where a shotgun was found. He was suspected of killing his girlfriend, and police noticed blood in various locations of his property, including on the outside of the shed. Despite proof that the defendant had multiple roommates, we found that he failed to rebut the presumption that he constructively possessed the shotgun as owner of the house.

In Peden, we found sufficient evidence to convict the defendant of constructive possession because he was found lying in bed, within arm’s reach of a bag of crack cocaine.

In Body, evidence established that the defendant had constructive possession of a gun that was found inside of a backpack. The backpack had been abandoned behind shrubbery, but an officer identified it as the same bag that the defendant was wearing when he was spotted running away from the scene of a shooting. We found that the defendant had constructive possession of the gun because of its close proximity to him in the backpack.

In each of these cases, this court found constructive possession of contraband after each defendant was found in close proximity to the item. Constructive possession was also established through other circumstances that connected them to the contraband.

While McGlothin was observed standing on the home’s porch six days before the firearm was found, this alone is not enough to establish constructive possession. There is no evidence to indicate when the gun was placed in the home. There was also no testimony confirming who had access to the home. McGlothin was not observed wearing the jacket where the gun had been located. The State produced no evidence indicating that he either owned the jacket or had accessed the jacket before the search warrant was executed.

In cases where the defendant is not the owner of the premises or in exclusive possession, then the State must prove some competent evidence connecting him with the contraband. Here, that has not been done.

In Naylor, MSC reversed after it found that the only evidence linking the defendant to the cocaine was that he was in close proximity to the drugs when it was found in the bathroom. While the defendant was at the home, the State did not prove that he lived in the home. We noted that the only other evidence admitted against the defendant was that his wallet was found in a closet where police also found firearms.

The State presented a theory that McGlothin lived in the home where the gun was located. The theory was based on the fact that his wallet and identification were found on a dresser in a room that contained men’s clothing. The State further based its theory on the fact that McGlothin was observed standing on the home’s porch just days before the search warrant was executed. The theory may be correct, but there was not any additional incriminating evidence beyond the presence of McGlothin’s identification in a room to support constructive possession of the weapon.