Proving Constructive Possession of Illegal Drugs
By Brian S. Batterton, J.D.
Officers from the Washington D.C. Metropolitan Police Department executed a search warrant at the home of Dale Ann Harris, where she lived with her children. When the police made entry, they found Harris and two other women inside the apartment; all were handcuffed and detained. Officers searched the kitchen and found jars, vials, tin foil, and spoons which contained suspicious liquid that smelled like phencyclidine (“PCP”). Later testing revealed that one jar and three vials contained a total of 34 grams of PCP, which is an amount consistent with distribution. Further, a finger print analyst found Harris’ fingerprint on one of the vials that contained PCP. A jury convicted Harris of possession of PCP with intent to distribute.
Harris appealed and alleged that there was not sufficient evidence to support her conviction because the government did not prove that she possessed the PCP.
The Court of Appeals for the District of Columbia first stated that to prove that Harris was in construction possession of the PCP, the government had to show that she “had the ability to exercise knowing dominion and control over the PCP.”i Harris’ argument was that the government did not sufficiently prove that she exercised dominion and control over the PCP. However, the court noted that there is case law that holds that “a jury is entitled to infer that a person exercises constructive possession over items found in his home,” even if the home is shared with other persons.ii The court also noted that there is an “inference that those who live in a house know what is going on inside, particularly in the common areas [emphasis added].”iii Thus, if there was sufficient evidence for a jury to conclude that Harris lived at the apartment in question, the jury could infer that she was in constructive possession of the items inside the apartment (at least those in common areas).iv
When applying the rules above to the facts of this case, the court concluded that here, the vials were in common areas of the apartment. Particularly, they were readily visible in the freezer and kitchen cabinet. In addition, the kitchen was littered with evidence consistent with PCP distribution such as jars smelling of PCP and tinfoil containing a black leafy substance. Another very important fact was that Harris’ fingerprint was located on a vial that contained PCP. Thus, in addition to Harris being a resident of the apartment, was other evidence that showed she “exercised dominion and control” over the PCP.
The court importantly noted that, where drugs and drug related objects are well hidden and multiple people share the apartment, there must be some additional evidence of “dominion and control” in addition to the fact that a person is a resident of the target location.v Therefore, it is important for officers to document the precise location were drugs and drug related objects are found. Additionally, it is a good practice to attempt to obtain fingerprints, where feasible. This can assist the prosecution in showing that a particular suspect exercised the required dominion and control to prove constructive possession.
i United States v. Harris, No. 06-3045 at 4 (quoting United States v. Morris, 977 F.2d 617, 619 (D.C. Cir. 1992)
ii Id. (quoting Morris, 977 F.2d at 620)
iii Id. (quoting United States v. Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991)
v Id. at 5