By Stevie Phillips
In State v. Robinson, police had staked out the co-defendant's house after receiving a tip from a confidential informant. The defendant was seen leaving the co-defendant's house on the way to a drug deal in a Backyard Burger parking lot. Police took down the defendant and co-defendant at the Backyard Burger.
The co-defendant subsequently consented to a search of his car as well as his house. The cops found large amounts of cocaine in both. Police also found some paraphernalia in plain view at the co-defendant's house. On basically this proof alone, a jury convicted the defendant of possession of the cocaine in both the car and the house.
It's one thing to find that the defendant constructively possessed the cocaine in the co-defendant's car. But the co-defendant's house? The TN Supreme Court held this week that that requires substantially more compelling circumstantial evidence and reversed the jury verdict. It's simply not enough for the State to prove that a defendant had knowledge that drugs were present; the State must prove that the defendant had the power to exercise control over the drugs.
Our Supreme Court rarely grants appeal to assess sufficiency of the evidence. Nor will it grant appeal for mere error correction. The Court will however grant appeal if there is an absence of case law on a particular issue. It appears that's why the Court granted appeal here. Before now, few TN courts have addressed whether a defendant's contact with another residence is sufficient to establish constructive possession.
The Supreme Court therefore looked at cases from a number of other states. The following is a list of factors that, based on the Court's analysis, should be considered in the "totality of the circumstances" when determining whether a defendant's contact with another residence is sufficient to establish constructive possession:
- the defendant's access to the residence, i.e. whether he resides in, leases, or has the right to enter without the co-defendant present
- whether the defendant was present when the drugs were discovered by police
- the frequency of the defendant's visits to the residence
- the location of the drugs in the residence, i.e. whether the drugs are in plain view
- whether the defendant's personal belongings are in the residence
- whether the defendant receives mail at the residence
- whether the defendant's fingerprints are present on paraphernalia in the residence
Read the unanimous opinion in State v. Robinson