Reaction Paper Guidelines

Reaction papers are a critical component of the conversation that will take place in this course. There will be a total of five different reaction papers throughout the course. Each of the five reaction papers will be approximately two pages in length. The text will be double-spaced and formatted using APA format. Students should clearly identify their topic and present their personal viewpoint or perspective; however, students must also present a factual basis for that viewpoint (as opposed to an opinion paper). All references supporting the factual basis must be properly cited to the original sources in accordance with APA guidelines.

Topic:

· Possession off contraband as a criminal offense

While you are primarily addressing the topic selected, you may want to discuss or expand on a topic presented in the textbook, a case dealing with the subject, or a current event from the news or Internet, and present your viewpoint or perspective on that item as it relates to the issue present in your chosen topic.

Main content

3-4Possession as a Criminal Act
LO6

Let’s start this section by making clear that possession is not action; it’s a condition (Dubber and Kelman 2009, 252). It’s only by means of a legal fiction (pretending something is a fact when it’s not, if there’s a “good” reason for pretending) that the principle of actus reus includes possession.

According to Professor Markus Dubber (2001):

Possession offenses have not attracted much attention. Yet, they are everywhere in American criminal law, on the books and in action. They fill our statute books, our arrest statistics, and eventually, our prisons. By last count, New York law recognized no fewer than 153 possession offenses; one in every five prison or jail sentences handed out by New York courts in 1998 was imposed for a possession offense. That same year, possession offenses accounted for over 100,000 arrests in New York State, while drug offenses alone resulted in over 1.2 million nationwide. (834–35)

In his criticism of the expansion of possession crimes, Professor Dubber (2001, 856–57) lists 38! And, he adds, “The list could go on and on.” According to Dubber, “millions of people commit one of its variants every day.… Operating below the radars of policy pundits and academic commentators, as well as under the Constitution, possession does the crime war’s dirty work.”

Possession of weapons, illegal drugs, and drug paraphernalia are the most common possession crimes. The “good reason” for pretending possession is an act is the powerful pull of the idea that “an ounce of prevention is worth a pound of cure.” Better to nip the bud of possession before it grows into an act of doing drugs or shooting someone. Also, most people get possession by their voluntary acts—for example, buying marijuana and putting it in their pocket. So their active acquisition brings about passive condition. But not always. Maybe a student who got a bad grade “planted” marijuana in my briefcase when I wasn’t looking. Or, maybe you put your roommate’s Ecstasy in your pocket to take it to the police station and turn it in.

There are two kinds of possession: actual and constructive. Actual possession means items “on me,” such as marijuana in my pocket. Constructive possession means items not on my person but in places I control, for example, my car or apartment (ALI 1985, 1:2, 24).

Possession, whether actual or constructive, can be either “knowing” or “mere.” Knowing possession means possessors are aware of what they possess. So, if you buy crystal meth and know it’s crystal meth, you have knowing possession. (Knowing doesn’t mean you have to know it’s a crime to possess crystal meth, only that you know the stuff you have is crystal meth.) Mere possession means you don’t know what you possess. So if you agree to carry your friend’s briefcase that you don’t know is filled with stolen money, you’ve got mere possession of the money.

All but two states (North Dakota and Washington) require knowing possession. Also, almost all the cases in the court reports are constructive possession cases, and they’re almost all drug and/or weapons cases.

Did She Possess Cannabis with the Intent to Sell, Manufacture, or Deliver it?
Case

In Williams v. State (2013), Zamara Janice Williams was convicted in a jury trial in the Circuit Court, Hillsborough County, of possession of cannabis with intent to sell, manufacture, or deliver.

Williams v. State 110 So.3d 59 (FL App. 2013)

History
Zamara Janice Williams (Defendant) was convicted in a jury trial in the Circuit Court, Hillsborough County, of possession of cannabis with intent to sell, manufacture, or deliver. Defendant appealed. The Florida Court of Appeals reversed and remanded.

CASANUEVA, J.

Facts
Tampa police officers Filippone and Cruz followed Zamara Janice Williams onto the interstate highway after they saw her drop off a passenger in the middle of 24th Avenue. They signaled to her to pull over because she was speeding and driving recklessly on the interstate and she complied, exiting the interstate and pulling into a parking lot. She was driving a rented compact hatchback with two passengers.

Even before the officers pulled up behind her in the parking lot, she had exited her vehicle and approached them in an extremely agitated state, telling the officers to just go ahead and give her the traffic citation. She was behaving in such an overwrought manner, amounting almost to having a panic attack and hyperventilating, that it took the officers several minutes to calm her before they could continue with the traffic stop. One officer testified that her heart was beating so furiously that he could see it pounding in her chest and offered to call emergency medical services (EMS), but she declined. The officers also testified that during this initial period of the stop, she was continually moving away from her vehicle and thus drawing them away with her; they had to keep bringing her back to her vehicle. As they stood near the driver’s door, they perceived the strong odor of fresh marijuana that was emanating from the vehicle and traced it to a closed black bag behind the rear seat in the hatchback.

Based upon the odor of marijuana, the officers asked Ms. Williams for permission to search the car. She responded by saying that she did not think that there would be drugs in the car but consented to the search. Upon further investigation, the officers noted that the car was unkempt with paperwork bearing Ms. Williams’ name strewn about. Inside the black bag they found a gallon ziplock bag containing almost a pound of fresh marijuana, a smaller baggie containing several pieces of what appeared to be, and what were later confirmed to be, crack cocaine; an open box of sandwich bags; and two digital scales. No attempt was made to lift fingerprints from the black bag or any item from inside the bag. Although the car was rented in Ms. Williams’ name, she was driving it, and her personal belongings were in the car, there was nothing on or in the black bag that tied it or the items inside it to her or anyone else.

Based on the above, the State charged Ms. Williams with three counts: possession of cannabis with intent to sell; possession of cocaine with intent to sell; and possession of drug paraphernalia. When Ms. Williams’ defense counsel moved for judgment of acquittal at trial, the trial court denied the motion based on the strong odor of marijuana, the fact that the officers had found letters addressed to Ms. Williams in the car, and the fact that the car was rented in her name.

After the jury submitted a question that indicated its concern about interpreting constructive possession, it returned a verdict of guilty of possession of cannabis but not guilty of the cocaine and paraphernalia counts. The trial court sentenced Ms. Williams to four years’ probation and she timely appealed.

Opinion
Because it was clear that Ms. Williams did not have exclusive possession of the black bag containing marijuana, as there were other persons in the car and she did not admit the bag was hers, the State was required to prove constructive possession with evidence beyond the fact that she was in near proximity to the black bag. When a defendant is not in exclusive possession of the vehicle where the contraband is found, the elements of knowledge and dominion and control may not be inferred or assumed but must be established through additional and independent proof. Therefore, the State’s burden was to prove two elements: (A) that Ms. Williams knew of the presence of the contraband and (B) that she had the ability to exercise dominion and control over it. It is the latter element for which we find the State’s evidence lacking.

The first element—knowledge of the presence of the marijuana in the black bag—that the State had to prove in order to convict Ms. Williams of constructive possession is satisfied here by the evidence of the strong odor of marijuana of which the officers were conscious when they approached her car. Additional evidence to support this first element is the reasonable inference that can be taken from Ms. Williams’ extraordinary behavior when she was stopped. The officers testified that they had never before stopped anyone for a traffic violation and had the person react as Ms. Williams did. She was anxious and nervous to an unheard of degree, hyperventilating and having observable heart palpitations, causing the officers to fear for her health and to offer to send for EMS. Further, she continually tried to maintain a distance between herself and the officers and her car. The reasonable inference is that she knew there was marijuana in the car.

It is the second element—ability to exercise dominion and control—for which there was insufficient proof. Had Ms. Williams been the only person in the car when the officers stopped her, this element would have been satisfied and a jury question raised. But because Ms. Williams had two passengers with her, the State is not entitled to the benefit of an inference of dominion and control. The State is required to produce independent evidence pointing to her dominion and control of the black bag containing the marijuana.

. . .

Even under the lesser standard of proof by a preponderance of evidence in a violation of probation case, the State in Hanania v. State, 855 So.2d 92 (Fla.2d DCA 2003), failed to prove constructive possession of contraband. A law enforcement officer had stopped the car in which the defendant was a front seat passenger, and a narcotics dog alerted on the passenger’s seat of the car. Upon his searching the car, the officer found a yellow manila envelope containing three baggies of suspected methamphetamine between the passenger’s seat and the center console transmission column, an electronic scale in a recess under the dashboard, and an envelope containing marijuana addressed to the driver and owner of the car under the passenger seat. The defendant testified that he had only recently entered the car, about five blocks before the traffic stop, because the driver, an acquaintance of his, had agreed to give him a ride home from the store where they had met. The State argued that the defendant’s proximity to the contraband was sufficient evidence of the conditions violated but this court disagreed because nothing in the record indicated that the defendant knew of the presence of the drugs or the scale or that he had the ability to exercise dominion and control over them.

Even though Ms. Williams was the driver of her car and the defendant in Hanania was a passenger, the present case is much like Hanania because there was no independent evidence linking either defendant to the contraband sufficient to convict other than mere proximity of contraband not in plain view.

The evidence presented at trial satisfied the first element—knowledge—that the State had to prove in order to overcome a motion for judgment of acquittal, but it did not establish that Ms. Williams was able to exercise dominion and control over the black bag that contained marijuana. Because the State failed to present sufficient evidence linking Ms. Williams to the contraband other than her mere proximity to it, the trial court erred in denying her motion for judgment of acquittal. Accordingly, we reverse the judgment and sentence for possession of marijuana. Because of the insufficient evidence supporting her conviction, on remand she must be discharged.

Judgment and sentence reversed and cause remanded with instructions to discharge Ms. Williams.

ALTENBERND, J., CONCURRING.

I agree that our outcome today is required by the precedent that is well explained in the court’s opinion. Courts and legislatures around the country take different positions on this issue. If I were writing on a clean slate, I would be inclined to believe that a jury should be authorized to return a guilty verdict on a drug charge where the defendant is an operator of a motor vehicle and has actual knowledge that the vehicle contains illegal drugs that easily could be removed from the vehicle.

In this case, Ms. Williams was driving her small rental car fully aware that a bag containing a large quantity of marijuana was behind her in the hatchback area. This marijuana was either her marijuana, her passengers’ marijuana, or marijuana jointly possessed by the driver and one or more of the passengers. Assuming the marijuana was not hers, she was in control of the car. She had the complete right before she entered the interstate to stop her car and order the criminal to exit the vehicle with the contraband. If she elected to continue to transport the contraband in this context, it seems to me that at a minimum she became a principal in the offense of possession and the jury was entitled to return this verdict.

Questions
1. Identify the two elements of constructive possession discussed by the court.

2. List the facts relevant to deciding whether Zamara Janice Williams constructively possessed marijuana.

3. Assume you’re the prosecutor. Argue that Williams actually and constructively possessed marijuana. Back up your arguments with facts in the case.

4. Assume you’re the defense attorney. Argue that Williams didn’t physically or constructively possess marijuana.

You Decide

Did She Possess Alcohol?
Tracy Kastl, a juvenile, was found to be delinquent, convicted of being a minor in possession of alcohol, and her driver’s license was suspended for one year. She appealed. The Arizona Supreme Court reversed and dismissed the case.

Facts
Tracy Kastl was one of five passengers in a vehicle that was parked in a parking lot in Waldron, Arkansas. Officers Johnny Smith and Ronnie Eisenhower of the Waldron City Police spotted beer cans beside the vehicle. They searched the vehicle with a flashlight and discovered a six pack of Coors Light beer lying on a “flat” in the hatch compartment of the vehicle behind Kastl. Randy Crowell, one of the passengers, admitted to purchasing the beer and claimed ownership.

The officers testified that Kastl did not have in her hand or lap any alcoholic beverage. The state contended that Kastl had “constructive possession” of the alcohol because it was in the vehicle in which she was an occupant. . . . The problem with joint occupancy arises because of the rule that when joint occupancy is the only evidence the State has, there must be some additional link between the accused and the contraband. . . . Tracy Kastl was clearly not in actual possession of the beer in this case.

The following was presented by the state to prove constructive possession of the beer by the appellant:

1. Beer cans were found lying between the vehicle in question and another parked vehicle;

2. A six-pack of Coors Light beer was found lying inside the vehicle in the hatch area behind Kastl, and according to Officer Eisenhower, all she would have had to have done was “just turn around and reached and grabbed it” [the beer]; and

3. Kastl had a smell of intoxicating alcohol about her person.

The state’s evidence that there were beer cans beside the vehicle, that beer was found in the immediate proximity of Kastl in the vehicle, and that there was the smell of beer on her person are not sufficient evidence of constructive possession. The state has not proven the additional evidence necessary to link the appellant to possession of the beer.

Reversed and dismissed.

Dissent
I believe substantial evidence exists to support Kastl’s conviction. . . . The state need not prove Kastl had actual possession of the contraband; constructive possession is sufficient. . . . The state can sufficiently link an accused to contraband found in an automobile jointly occupied by more than one person by showing additional facts and circumstances, indicating the accused’s knowledge and control. One such circumstance is when the contraband is found on the same side of the car as the accused was sitting or in his or her immediate proximity. Here, it is undisputed that Tracy was seated in the immediate proximity of a six pack of beer. However, there are even more facts to show Tracy’s knowledge and control of the beer or contraband seized in this case.

. . . The evidence shows:

1. Officers Smith and Eisenhower drove on to the lot where the car, in which Tracy was a passenger, was parked. There was a beer can by the car and one on the lot. The officers had been on the lot earlier and no beer cans were on it.

2. Five people were in the car, two young men in the front and Tracy and two young men in the rear seat. A six pack of beer was seen immediately behind the rear seat and the beer was within arm’s reach of Tracy.

3. Several of the subjects were seen with open beer cans between their legs, although Tracy was not one of them.

4. Both officers smelled the odor of intoxicating beverage about Tracy’s person.

The foregoing evidence speaks for itself. The trial judge could have reasonably inferred that Tracy had been drinking and that Tracy was within arm’s reach of the six pack of beer found in the car. Some of the others in the car had open beer cans in their possession, and it is fair to infer occupants of the car had discarded two beer cans onto the lot—one of the cans was located immediately next to the car.

From this evidence, the trial judge, as fact finder, could have reasonably believed Tracy had knowledge and control of the beer located in the car. In fact, to have found and decided otherwise would, in my estimation, have ignored the obvious. The trial judge’s decision should clearly stand.