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Exclusive dominion and control of house not required for constructive possession

Facts

Following a controlled drug buy by a confidential informant, the Harrison County Sheriff’s Department secured a search warrant for a home in Pass Christian. Inside, they found more than sixty grams of powder cocaine hidden inside a coffee maker. On the front porch, inside a Christmas decoration, they found an additional 2.9 grams of cocaine base, commonly known as crack cocaine. According to the State’s witnesses, this is a large quantity of cocaine, consistent with distribution and not personal use.

When deputies entered, Christopher Jordan and his girlfriend were seated in the kitchen, a short distance from the coffee maker. Inside Jordan’s wallet, found on his person, they discovered $4,000 in bills, packaged in increments of $1,000 wrapped in small rubber bands. In the master bedroom, they found a binder containing another $9,000, also in $1,000 increments wrapped in small rubber bands, and a traffic ticket in Jordan’s name.

Investigators also found a man’s clothing on the floor and in the closet. Jordan admitted to one of the investigators that he resided at the house, though his driver’s license bore a different address. Finally, investigators found a small amount of crack cocaine in a matchbox in the bedroom of one of the adult children.

Jordan was convicted of possession with intent to distribute and sentenced to 60 years as a habitual offender. On appeal, he argued he was not in exclusive possession. MCOA affirms.

Analysis

In Ferrell v State, 649 So. 2d 831 (Miss. 1995), MSC said that the question of constructive possession is whether the defendant exercised dominion and control over the contraband. When the defendant owns or controls the premises where the contraband is found, there is a presumption of constructive possession of the contraband.

But if the defendant’s possession of the premises is not exclusive, there must be additional incriminating circumstances tying him to the drugs. While it is evidence of constructive possession, mere physical proximity to the contraband does not, in itself, show constructive possession.

On appeal,  he contends that the house was owned by Jordan’s girlfriend, but there does not appear to have been any evidence of who owned the house. Jordan also claims that the proof showed that he was merely present in the home at the time the search warrant was executed. That is simply not the case – the investigator testified that Jordan had admitted he lived there.

Since Jordan did not live in the house alone, additional incriminating circumstances were required to prove constructive possession of the drugs. These were Jordan’s admitted occupancy of the house, the recent drug sale at the house, his place among the occupants (he and his girlfriend were the senior residents and apparently shared the “master” bedroom), Jordan’s proximity to the drugs when they were found, and his unexplained possession of large amounts of cash.

Jordan argues he did not have exclusive possession and control of the house; his girlfriend, two of her children, and at least two small grandchildren lived there as well. Dominion and control of the premises, not exclusive dominion and control, is sufficient.

In Roach, MSC said that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles. We can see no reason why strict ownership of the premises should be the test, since possession is what is at issue. Why should the owner of an apartment be presumed to be in possession of contraband found inside, and not the tenant who lives there? Jordan does not say.

 

https://courts.ms.gov/images/Opinions/CO96304.pdf