Presence in the car is not enough for constructive possession


Lillian Johnson was working as a cashier at the Amoco station on Highway 613 in Jackson County in 1991. While she was working, Imo Kibwe Jawara and Robert Lewis Jones were riding through Jackson County in Jawara’s car on their way from New Orleans back to their homes in Georgia. About 9:00 p.m. the men stopped at the Amoco station on Highway 613 to put some gasoline into Jawara’s car.

Jackson County Sheriff Deputy Billy Thicksten was inside of the Amoco station when Jawara and Jones stopped there. Jawara went inside the station after putting gas in his car. When he reached into his pocket for money, he pulled out a cellophane bag which appeared to Johnson to contain marijuana. About that time Deputy Ricky Rader entered the store.

Johnson told Rader what she thought she had seen. Deputy Rader informed Deputy Thicksten that the cashier believed that Jawara had marijuana in his pocket. The two deputies walked out of the station just as Jawara and Jones were pulling out onto Highway 613. The deputies followed Jawara and Jones in separate vehicles as they left the station and subsequently pulled them over to the side of the road.

Jawara, who was driving, was informed that he was pulled over because of a suspected expired Georgia tag. He was then asked if his car could be searched. Jawara allegedly gave his approval of the search. Rader found a jacket in the back seat which contained a bag containing a “green leafy substance.” Jones and Jawara were then arrested for possession of marijuana.

Rader then inventoried the car on the scene. He found a revolver in a briefcase in the back seat and a set of scales in the car and bags containing a similar leafy substance in the trunk of the car. The total amount of marijuana seized was approximately twelve pounds. Jawara admitted that he had entered the Amoco station to pay for the gas but denied that any of the marijuana found in his car belonged to him, stating that it had been placed there by someone else in New Orleans.

Jones was convicted of possession of more than one kilogram of marijuana and sentenced to nine years. On appeal, he argued he was not in possession of the drugs. MCOA affirmed. MSC agreed with Jones and reversed.


Since Jones was not caught in actual possession, the rules concerning constructive possession come into play.

The theory of constructive possession has been explained, in Curry v. State, 249 So. 2d 414 (Miss. 1971), as follows:

There must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. 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 Curry, he was the owner and front passenger of a vehicle being driven by another individual when it was stopped. Marijuana was found under the dashboard and under the accelerator. Curry was in the car with three other people from Texas to Mississippi. He was in close proximity to the drugs. He made a suspicious downward movement when being stopped by the police. Also, a state witness gave testimony against him. Curry’s conviction was affirmed.

The theory was further defined in Hamburg v. State, 248 So.2d 430 (Miss. 1971), 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. This presumption is rebuttable, however, and does not relieve the State of its burden to prove guilt beyond a reasonable doubt. Thus, where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.

A. Cases where constructive possession was not found

A.1 Cunningham

In Cunningham v. State, 583 So.2d 960 (Miss. 1991), Cunningham was a passenger in a pick-up truck owned and driven by Mr. Sipp. Sheriff’s deputies sought to stop the truck because it was driving erratically. A search of the passenger area turned up a medicine bottle on the passenger side of the transmission hub which ran through the cab. The medicine bottle was found to contain cocaine.

We stated that decisions on constructive possession must establish that when contraband is found on premises, there must be evidence, in addition to physical proximity, showing that the defendant consciously exercised control over the contraband, and, absent this evidence, a finding of constructive possession cannot be sustained.

The three factors showing constructive possession were: (1) Cunningham looked back repeatedly at the pursuing police car once the blue lights were turned on; (2) the relationship between Sipp and Cunningham was such that contraband owned by one was probably owned by both; and (3) Sipp’s explanation about someone else using his truck earlier was not credible.

We found that the evidence of possession was insufficient and reversed and rendered Cunningham’s conviction.

A2. Hudson

In Hudson v. State, 362 So.2d 645 (Miss. 1978), evidence of constructive possession was insufficient where neither driver nor passenger of car owned the car and marijuana was found hidden under hood near radiator.

A3. Fultz

In Fultz v. State, 573 So.2d 689 (Miss. 1990), evidence of constructive possession was insufficient as to driver where marijuana was found in trunk of car which belonged to driver’s sister, driver had been using car for about four hours, and driver was found to have small amount of marijuana in his wallet.

B. Our case

In this case there is nothing to connect Jones to this marijuana except for his presence in the car. Jones was not the one spotted by Lillian Johnson in the Amoco station as allegedly having marijuana; Jones was not connected with the jacket in the backseat of the car containing marijuana; Jones did not own or drive the car in question; Jones did not testify at trial; Jawara either denied or did not know of any connection between Jones and the marijuana in the car.

The evidence was insufficient to show Jones’s constructive possession of the marijuana and a directed verdict should have been granted in his favor. The judgment of the Court of Appeals and the Jackson County Circuit Court is reversed and rendered.