We often get asked if a person can be convicted for drug possession if they were merely near the illegal drugs that were found. For example, let’s assume three friends are in a car, Joe, Cindy and Parker. They get pulled over for “swerving”. The officer claims he smells marijuana (because of his superbionic nose), and so he searches the car. Under the passenger seat, he finds some marijuana. Joe was driving, Cindy was in the front passenger seat, and Parker was asleep in the back seat.
One person recently said this me: “Hey, I understand I am guilty no matter what, right? After all, we are in Utah!”
However, there is much more to it than that, and the Utah Supreme Court has made it clear that simply being near illegal drugs when they are found is NOT enough to support of conviction of guilt.
Here is what that case (State v. Fox, 709 P.2d 316, 318-20) , which invoved Clive and Gary Fox, the Court said the following:
“A conviction for possession of a controlled substance with intent to distribute requires proof of two elements: (1) that defendant knowingly and intentionally possessed a controlled substance, and (2) that defendant intended to distribute the controlled substance to another. U.C.A., 1953, § 58-37-8(1)(a)(ii).
“Actual physical possession presupposes knowing and intentional possession. However, actual physical possession is not necessary to convict a defendant of possession of a controlled substance. State v. Carlson, Utah, 635 P.2d 72, 74 (1981). A conviction may also be based on constructive possession. Id. In Carlson, we held that constructive possession exists “where the contraband is subject to [defendant’s] dominion and control.” Id. However, persons who might know of the whereabouts of illicit drugs and who might even have access to them, but who have no intent to obtain and use the drugs can not be convicted of possession of a controlled substance. Knowledge and ability to possess do not equal possession where there is no evidence of intent to make use of that knowledge and ability.
“To find that a defendant had constructive possession of a drug or other contraband, it is necessary to prove that there was a sufficient nexus between the accused and the drug to permit an inference that the accused had both the power and the intent to exercise dominion and control over the drug. See United States v. Cardenas, 748 F.2d 1015, 1019-20 (5th Cir.1984); United States v. Rackley, 742 F.2d 1266, 1272 (11th Cir.1984); United States v. Davis, 562 F.2d 681, 694 (1977) (Bazelon, C.J., dissenting in part, concurring in part).
“Whether a sufficient nexus between the accused and the drug exists depends upon the facts and circumstances of each case. State v. Anderton, Utah, 668 P.2d 1258, 1264 (1983). Ownership and/or occupancy of the premises upon which the drugs are found, although important factors, are not alone sufficient to establish constructive possession, especially when occupancy is not exclusive. United States v. Davis, 562 F.2d 681, 693 (D.C.Cir.1977). Some other factors which might combine to show a sufficient nexus between the accused and the drug are: incriminating statements made by the accused, Allen v. State, 158 Ga.App. 691, 282 S.E.2d 126, 127 (1981) (defendant told unnamed individual that defendant had $500 worth of marijuana); incriminating behavior of the accused, United States v. Garcia, 655 F.2d 59 (5th Cir.1981) (defendant nodded affirmatively when introduced as owner of cocaine, and remained with drug during negotiations); Francis v. State, Ala.App., 410 So.2d 469 (1982) (defendant slammed door in face of police and ran back into the house yelling, “throw it in the fire”); presence of drugs in a specific area over which the accused had control, such as a closet or drawer containing the accused’s clothing or other personal effects, Walker v. United States, 489 F.2d 714, 715 (8th Cir.) (drugs found in closet containing defendant’s clothing), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974); presence of drug paraphernalia among the accused’s personal effects or in a place over which the accused has special control, United States v. James, 494 F.2d 1007, 1030-31 (D.C.Cir.) (drug paraphernalia found in a locked box in defendant’s dresser), cert. denied sub nom., Jackson v. United States, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974); Petley v. United States, 427 F.2d 1101, 1106 (9th Cir.) (pipe containing marijuana residue found in defendant’s duffel bag), cert. denied, 400 U.S. 827, 91 S.Ct. 55, 27 L.Ed.2d 57 (1970). In every case, the determination that someone has constructive possession of drugs is a factual determination which turns on the particular circumstances of the case. Among these circumstances must be facts which permit the inference that the accused intended to use the drugs as his or her own. A conviction for production of a controlled substance requires evidence that the accused knowingly and intentionally produced the controlled substance. U.C.A., 1953, § 58-37-8(1)(a)(i) (supp.1983); see State v. Echevarrieta, Utah, 621 P.2d 709, 712 (1980); and evidence of possession may be part of a circumstantial link in the necessary chain of evidence.
“The evidence as to Gary sufficiently supports his convictions for production of a controlled substance and possession of marijuana with an intent to distribute. Gary owned the property where the marijuana was found. Although he may not have had exclusive control or possession (in a practical non-legal sense) of the premises, his non-exclusive possession and control combined with other incriminating evidence to provide an adequate foundation for the convictions. State v. Anderton, Utah, 668 P.2d 1258, 1264 (1983). Gary owned the house. His occupancy and control was evidenced by the presence of his personal effects in the same room as marijuana, drug-related paraphernalia, and a book entitled Marijuana Grower’s Guide. Another room also contained marijuana and drug paraphernalia. Because he was the owner and occupier of the property and because of the manner in which the greenhouses were constructed in proximity to the house, one being accessible only through the house, there is a reasonable inference that he not only knew of the greenhouses and their contents but also had the power and intent to exercise dominion and control over the marijuana located in them, and was responsible for growing the marijuana. Furthermore, there was sufficient evidence that he intended to distribute the marijuana. Where one possesses a controlled substance in a quantity too large for personal consumption, the trier of fact can infer that the possessor had an intent to distribute. State v. Anderton, Utah, 668 P.2d 1258, 1262 (1983). The police found approximately 2,850 mature marijuana plants growing on Gary’s property, an amount of marijuana unquestionably too large for personal use.
On these facts the evidence was sufficient to sustain the conviction of Gary Fox of possession of a controlled substance with intent to distribute, and production of a controlled substance.
Because one of the greenhouses was attached to the house and was openly accessible from the kitchen, the trier of fact could reasonably find that Clive Fox knew that marijuana was being grown in the house. However, to prove that he had constructive possession of the marijuana, the evidence must also show that he had the power and intent to exercise dominion or control over the marijuana.”
Here is the kicker:
“There is no evidence that Clive Fox had any intent to grow or to possess the marijuana in the greenhouses. While he may have had knowledge of the existence of marijuana on the premises, that is not the equivalent of constructive possession. Indeed, evidence supporting the theory of “constructive possession” must raise a reasonable inference that the defendant was engaged in a criminal enterprise and not simply a bystander. That is, the evidence in its totality must show that defendant’s dominion or control over the area must have been such that he in fact intended to exercise dominion and control over the marijuana.”