The search warrant for Lonnie Jones’s residence stemmed from a police search for guns, magazines, and ammunition stolen in a local burglary approximately five days before. The warrant was issued based on an affidavit from a police investigator that stated a woman, Jessica Cochran, had been suspected of taking the guns based on her having been in the residence prior to their being stolen.
The affidavit further noted that a concerned citizen had told a deputy that Cochran had said she took the guns to Jones’s residence. A separate proven confidential source had told a different investigator that Jones was in possession of stolen guns at his residence.
When the authorities executed the search warrant, they saw Jones toss a camera bag behind a couch he had been sitting on. A search of the camera bag revealed two small bags of synthetic marijuana, other small plastic bags, and a digital scale. The authorities found other drug paraphernalia in plain view, as well as four more small bags of synthetic marijuana in a pillowcase on Jones’s bed. According to the officers, the bags fell out of the pillowcase when the bed was searched.
Jones was convicted of possession of synthetic cannabinoids with intent to distribute and child endangerment based on the presence of his four year-old daughter in the home with the drugs. He was sentenced to 30 years. On appeal, he argued the warrant was not supported by probable cause and was overly broad. He also argued he was not in constructive possession. MCOA affirmed.
A. Probable cause
Jones focuses his arguments on the reliability of the confidential informants. He notes the absence of any attested prior police experience with the concerned citizen that might speak to his or her veracity. Jones further notes that the second informant was only said to have been proven, without explanation of what had been proven. According to Jones, the informant could have been proven to be unreliable or untruthful.
This is just not a reasonable construction of the warrant’s language. When used to describe a source, by itself the word proven can only be reasonably construed to have a positive connotation. While it certainly would have been preferable for the affidavit to have explicitly recited that the informant had furnished the authorities with information in the past that has proven to be true and correct, or some similar formulation, given the context it is difficult to take any other meaning from the use of the words proven confidential source.
Probable cause is a totality of the circumstances analysis. The account of the proven source was corroborated by the independent account of the (admittedly unproven) concerned citizen, which was itself supported by the police investigation that had identified Cochran as a suspect in the burglary where the guns were stolen.
We are satisfied that this evidence, viewed in the totality of the circumstances, was sufficient to give the issuing court a “substantial basis for concluding that probable cause existed.
Jones contends that the search warrant was invalid because it was overbroad. He points to what he calls a catchall clause that formed the concluding paragraph of the warrant. It stated:
Do not interpret this writ as limiting your authority to seize all contraband and things the possession of which is itself unlawful which you find incident to your search, or as limiting your authority to make otherwise valid arrests at the place described above.
We see no overbroadness in the provision. It only authorizes the seizure of contraband if it is found pursuant to the search authorized for the items particularly described in the warrant; in other words, the clause is a restatement of the plain view doctrine.
C. Constructive possession
MSC said in Curry v. State, 249 So. 2d 414 (Miss. 1971), that possession can be actual or constructive; constructive possession exists where the contraband was not found in the defendant’s actual physical possession but was subject to the defendant’s dominion or control.
It may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband. In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), MSC said that when the defendant owns or controls the premises where the contraband is found, there is a presumption of constructive possession of the contraband.
In Fultz v. State, 573 So. 2d 689 (Miss. 1990), MSC said that 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.
Jones points out that the home was owned by his mother, and that there were other individuals in it at the time the warrant was served and the drugs were found. He notes that one of them, a juvenile, was also in possession of synthetic marijuana when the warrant was served.
Jones’s argument falls apart, however, when he contends that there was nothing linking him to the drugs found in the bedroom. In fact, the officers testified that Jones admitted the bedroom was his. They also testified that Jones told them they would find documents relating to his daughter in a dresser in his bedroom, which they did. The officers also testified that it appeared that Jones’s mother resided in a different bedroom in the house, based on the personal effects.
On appeal, Jones just ignores this testimony; but we are of the opinion that Jones’s possession of the home and the bedroom were established by sufficient evidence at trial, and that even if that possession were not exclusive, there were clearly additional incriminating circumstances – the facts that Jones was contemporaneously found in actual possession of other synthetic marijuana, along with paraphernalia related to distribution, such as bagging material and digital scales. We are satisfied that there was sufficient evidence for a reasonable jury to convict based on a constructive possession theory.