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It is possible to have joint constructive possession

Facts

In 1995, Troopers Andy Estridge and Dennis Weaver, Mississippi Highway Patrol, noticed a gray car headed south on U.S. 51 just north of Sardis, Mississippi, following closely behind another vehicle. Estridge pursued and stopped the gray Buick, exited his patrol car, and met the driver of the Buick at the rear of the Buick. The driver of the vehicle informed Estridge that his Tennessee license had been suspended. At this time, Estridge identified Jerome Wall as the driver of the vehicle.

Estridge testified that he then approached the vehicle to speak to the passenger and detected the odor of marijuana coming from the passenger’s compartment of the vehicle. Estridge testified that he searched the passenger compartment and found film canisters containing what he believed to be marijuana. He further testified that Wall became irate and wanted to know who had put the canisters in his car.

Estridge put Wall under arrest and checked him further to make sure Wall did not have any marijuana on his person. Estridge then gave the film canisters to Weaver and told him to watch the subject because he wanted to finish checking the car. Estridge testified while he began checking the passenger’s person, he noticed that Weaver and Wall were gone from the location. He immediately went to the radio dispatch to call for assistance.

Weaver returned without Wall, who had fled. After another search of the vehicle by Weaver, more alleged marijuana was found on the driver’s side and a duffel bag containing several items was found in the trunk.

Wall was found and convicted of possession of marijuana. As a habitual offender, he was sentenced to life. On appeal, he argued he was not in constructive possession of the marijuana. MSC affirmed.

Analysis

In Curry v. State, 249 So.2d 414 (Miss. 1971), we said that constructive possession occurs when the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Constructive possession may be shown by establishing that the drug involved was subject due to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

In Hamburg v. State, 248 So.2d 430 (Miss. 1971), we said that one who is the owner in possession of the premises is presumed to be in constructive possession of the articles found in or on the property possessed. In other words, the owner of a vehicle is presumed to be in constructive possession.

Wall was the owner and operator of the vehicle and, thus, is presumed to be in constructive possession. Wall did not present any evidence to overcome this presumption aside of mentioning the fact that there was a passenger present in the vehicle with him. However, it is of no consequence that there was a passenger present in the vehicle with Wall. We said in Powell v State, 355 So. 2d 1378 (Miss. 1978) that it is quite possible to have joint constructive possession.

This case is very similar to Wolf v State, 260 So. 2d 425 (Miss. 1972). In Wolf, the evidence showed that the car belonged to Wolf, that he had been driving it, that the marijuana was found in the immediate proximity of the defendant, and that these circumstances were sufficient to support the jury’s finding of guilt. These are exactly the facts described in the record of the present case.

 

https://courts.ms.gov/images/Opinions/Conv5486.pdf