Driver, who was not owner of car, was in constructive possession of gun under his seat


Joshua Johnson allegedly rented * a vehicle from another individual and was then stopped in 2019 by Detective Errick Peacock of Ridgeland P.D. for running a red light. Johnson admitted that he ran the light and provided Peacock an identification card but no driver’s license or proof of insurance. Peacock smelled an odor of marijuana in the vehicle, and when a second officer arrived, they asked Johnson and his female passenger to step out.

While Peacock was beginning his search of the vehicle, Johnson fled on foot. Johnson claimed that he did so because he had some outstanding tickets. After apprehending Johnson and placing him under arrest, Peacock continued the search of the vehicle and found, among other things, a loaded Heritage Rough Rider .22- caliber revolver underneath the driver’s seat.

Johnson, who had previous felony convictions, was convicted of possession of a firearm by a felon and sentenced to ten years. On appeal, he argued he did not possess the gun found in the car. MCOA affirmed.


Possession of a firearm can be actual or constructive. Constructive possession allows the State to establish possession when evidence of actual possession is absent. An item is within one’s constructive possession when it is subject to his dominion or control. Constructive possession may be established by direct evidence or circumstantial evidence.

If one owns the vehicle in which contraband is found, a rebuttable presumption of constructive possession arises. But when contraband is found in a vehicle that is not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession. The State is required to establish additional incriminating circumstances in order to prove constructive possession.

In Billups, we found sufficient evidence of incriminating circumstances to support the jury’s conviction of Billups for possession of a firearm when he was stopped as he was exiting a shed in which a stolen shotgun was found. It was less than two hours after the robbery, Billups was the only person in the shed owned by his aunt, and the shed was virtually empty besides the shotgun.

In Peden, we found sufficient evidence to convict the defendant of constructive possession of cocaine because, although he was found in a motel room rented by another person, Peden was within arm’s reach of a bag of crack cocaine.

In Kelly, MSC found constructive possession of a gun when a defendant fled on foot during a traffic stop and was apprehended with a magazine. Police found the gun, which matched the magazine, fifty feet from where Kelly was arrested in a yard where owners said the gun did not belong to them.

MSC noted the additional evidence the State established, including Kelly’s flight and that Kelly had the opportunity and motive to dispose of the gun. Although the gun itself was found with a magazine already inserted, the MSC found the constructive possession in this case valid based on the totality of the circumstances.

In Lewis, we found constructive possession valid when a handgun was found under the driver’s seat of the car that Lewis was driving, subject to his dominion and control.

In this case, the gun was found under the driver’s seat where Johnson had been sitting and easily accessible to him just as in Lewis. Further, testimony showed Johnson had sole possession of the vehicle for at least one week to ten days. Although it was parked at his place of employment for several days, there was no testimony that the vehicle was unlocked or accessible to others.

Johnson himself testified that the vehicle was clean when he got it. The State presented proof of other incriminating circumstances, including Johnson’s flight from the scene of the stop and Johnson’s phone calls to another person to make sure their testimony matched.

* There were facts suggesting this could have been a stolen car but the jury found him not guilty of receiving stolen property.