Charge Everyone and Let the Jury Sort it Out.

On 8-12-13 at approximately 1125 hrs I Officer Jones noticed a vehicle traveling eastbound on Main Street.  The vehicle appeared to be traveling above the posted speed limit.  I activated my radar unit and locked the vehicle in at 30 mph in a 25 mph zone.  I activated my emergency lights and proceeded to make a traffic stop of the vehicle.

I made contact with the driver and requested his driver’s license, insurance and registration.  There were three passengers in the vehicle and I requested identification from each of those individuals.

I could smell a strong odor of marijuana emanating from the vehicle.  All occupants were removed from the vehicle and patted down for officer safety.  All occupants denied the presence of any contraband in the vehicle.  The occupants were asked to have a seat on the curb while I searched the vehicle.

During the search of the vehicle a plastic baggie containing approximately 1 gram of a green leafy substance was located in the center console.  Based upon my training and experience this substance appeared to be marijuana.

All occupants denied the marijuana was theirs.  All occupants were subsequently placed in handcuffs and charged with Possession of a Controlled Substance.

Sound familiar?  This is an all-to-common fact pattern that comes across our desks on a regular basis.  The same basic principles apply to other forms of contraband as well as to other locations, such as houses and apartments.  So, in these types of situations, where contraband is found near multiple individuals how do prosecutors, defense attorneys, the courts and juries sort out who is responsible?

The law delineates two types of possession: actual possession and constructive possession.  A person actually possesses contraband when it is found on his or her person; such as when a baggie of marijuana is found in someone’s front pant pocket.  When an individual has knowledge of an item’s presence and has the authority or right to maintain control of the item, that person constructively possesses the item.  The aforementioned fact pattern is an example of a constructive possession case.

Pursuant to Iowa law, to prove a constructive possession case the State is required to prove beyond a reasonable doubt the defendant:

(1)          exercised dominion and control over the contraband;

(2)          had knowledge of the presence of the contraband; and

(3)          had knowledge that the material was a controlled substance.

In the fact pattern presented, possession of the marijuana cannot be inferred due to multiple individuals occupying the same vehicle.  Under these circumstances there are a number of factors that are examined to determine whether each defendant had knowledge and was able to maintain dominion and control over the contraband.  These include (1) incriminating statements, (2) incriminating actions when contraband is discovered in or near the defendant’s belongings, (3) fingerprints, or (4) any other circumstances linking the defendant to the contraband. 

In motor vehicle cases additional factors that are considered are (1) was the contraband in plain view, (2) was it with the defendant’s personal effects, (3) was it found on the same side of the car seat or next to the defendant, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant. 

If you ever find yourself in a similar position it is in your best interest to simply remain silent and know you will be better off in the long run if you simply don't say anything.  Shut up; Wise up; Lawyer up.  Just in case you need a friendly reminder in your time of need, don’t forget to download the Oh Crap App available at Android Market and iTunes.

A Doggone Shame

Mans best friends have been used for decades in an effort to detect the odors of narcotics in drug interdiction operations. This time however, "mans best friend" played a different role, landing their owner in jail on a pot charge. In the case of State vs. Pals, a decision recently handed down by the Iowa Court of Appeals, a couple of mischievous canine’s landed their owner in jail for possession of marijuana.

Court of Appeals decision started with the quote: “This case began with the question, ‘Who let the dogs out?’” In a story that could only happen in a small Midwest town, the Worth County Sheriff’s office responded to a call that two dogs, a tan and brown Brittany Spaniel and a Chocolate Labrador, were running loose and “knocking stuff down” in the City of Joice. This was a violation of the city ordinance prohibiting dogs from “running at large.” Dutiful to his oath to “protect and serve,” Worth County Sheriff Deputy Mark Wubben (hereafter “The Dutiful Deputy”) responded to the call and saw the dogs running loose but noticed that they did not have tags or collars. Upon talking to the town people, The Dutiful Deputy still could not determine who the owned the rambunctious canines but he observed a white pickup truck with a red topper that appeared to be looking for the dogs as well. A short time later, The Dutiful Deputy’s sharp vision allowed him to see that the Brittany Spaniel was in the back of the truck but the Labrador was nowhere to be found. Unable to find the Labrador, The Dutiful Deputy continued with his investigation and learned that the dogs had escaped from a fenced-in area behind a bar where their owner, Mr. Pals was playing pool.

Finally, unable to locate the long lost Labrador, The Dutiful Deputy headed back out of town. However, on his way out of town he encountered Mr. Pal’s vehicle, the white pickup truck with a red topper, going the other way. According to The Dutiful Deputy, he pulled Mr. Pals over “because he wanted to talk to him about the dogs and advise him that the dogs needed tags and collars.” Being pulled over Mr. Pals was polite and cooperative and informed The Dutiful Deputy that both dogs had been recovered and that the Labrador was likely hiding in the kennel under the topper. Unfortunately for Mr. Pals, he was unable to produce his insurance card when requested and The Dutiful Deputy then asked that he accompany him to his car. After approximately 6 minutes of “friendly” conversation The Dutiful Deputy asked Mr. Pals whether he could search his vehicle. At the time he made this request, he had no basis to believe that Mr. Pals was in possession of anything illegal or was engaged in illegal activity. However, Mr. Pals consented and the Dutiful Deputy discovered the “green leafy substance” that ultimately landed Mr. Pals in jail.

While this case has some considerable legal issues that were discussed by the Court of Appeals, including a well-reasoned dissent written by Judge Doyle which would be a great subject of another blog topic at a later date, the story of the Dutiful Deputy and the “dogs at large” serves as a very good object lesson. Citizens in this State can never be required to consent to a search of their person, vehicle or home. Law enforcement will routinely ask for permission even if they do not suspect any criminal wrong doing for precisely the reason illustrated in this case. Sometimes they stumble across things. It never makes sense for a citizen to consent to a search of their person, vehicle or home, if they know they are in possession of contraband. Likewise, we never know what others have place or left in our vehicle but you can be certain if you consent to a search and contraband is found in or on your property, you will be the one charged. An important object lesson learned the hard way by Mr. Pals thanks to his rambunctious canine friends.

Know your rights; Exercise your rights; Preserve your freedom.