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Employee of store consented to police viewing of records and owner had constructive possession of illegal items

Facts

In 2015, MBN was investigating the sale of spice at two of Abdulkhaliq Mohammed Murshid‘s convenience stores. Armed with an arrest warrant for Murshid, MBN agents with police insignia entered his Gray Cloud store. An employee told the agents that Murshid was not there and then was asked questions about spice.

The employee indicated that the store did not sell spice because the substance was illegal in Mississippi. When asked whether the store sold incense, however, the employee said yes, opened a drawer behind the counter, and invited the two agents to walk behind the counter to view the drawer’s contents. The open drawer contained numerous foil packages with assorted markings, and the agents recognized that the packages were consistent with the type used to store and distribute spice.

MBN then obtained a search warrant for the store based upon the observation by the officers. Murshid was convicted in circuit court of possession with intent to sell counterfeit goods and possession with intent to sell spice and sentenced to eight years. On appeal, he argued that 1) the employee could not provide consent to law enforcement as he was not the owner of the store and 2) Murshid lacked constructive possession of all illegal items found in the stores. MCOA affirmed.

Analysis

A.  Consent

Exceptions to the warrant requirement include consent to search, which is not limited to the property owner and can be given by a third party if that party possesses common authority, mutual use, and joint control over property not in the exclusive control or possession of the defendant and where the defendant had no reasonable expectation of privacy.

Although Murshid owned the Grey Cloud store, he was not present when the two MBN agents entered the store. The employee behind the counter was the only individual present and was authorized during Murshid’s absence to continue operating the store unsupervised. As part of her duties, the employee possessed absolute authority to occupy the space behind the counter, to operate the cash register, and to sell the store’s merchandise.

The employee appeared to have unlimited and unrestricted access to, as well as complete control and dominion over, the area behind the counter. That area included the unlocked drawer in her immediate vicinity that contained the products labeled as incense.

Based on such facts, we conclude that the Grey Cloud employee possessed sufficient common authority, mutual use, and joint control over the area behind the store counter to invite the agents to view the drawer’s contents and to voluntarily consent to a search of that particular space.

B.  Constructive possession

Because none of the seized contraband was found in Murshid’s actual possession, the State had to prove that he constructively possessed the spice and counterfeit goods at issue. 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.

The State can establish constructive possession by showing that the contraband was under the dominion and control of the defendant. A presumption of constructive possession exists when the defendant owns or controls the premises where the contraband is found. If the defendant’s possession of the premises is not exclusive, however, there must be additional incriminating circumstances tying him to the contraband.

Murshid owned and operated the Grey Cloud store while his wife owned the Meridian store.  His wife stated that 1) although she owned the Meridian store on paper, Murshid actually owned the store and controlled the purse strings and 2) Murshid stopped by the store twice a week and paid bills, rent, and taxes. Also, Murshid told law enforcement that he knew his wife purchased incense to sell at the store. Finally counterfeit items were found in both stores on display.

The State presented evidence to show not only that Murshid exercised dominion and control over both the Meridian Tobacco and Grey Cloud stores but also that he possessed knowledge of the presence and character of the contraband sold at both locations. We therefore conclude the State provided ample evidence from which the jury could find that Murshid constructively possessed the contraband seized at both store locations.

 

https://courts.ms.gov/Images/Opinions/CO153297.pdf