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Mark Olberding Sept. 7, 2009

Whether a person has possession of a controlled substance is controlled by the facts of each case. Here a person was convicted of possession of a controlled substance because he was in the home and near where the drugs were found. The conviction was overturned and the case ordered dismissed in: STATE OF IOWA, vs. DALE LEE SHORTER.

Because the outcome of possession cases are determined by each case’s facts and because the opinion is very well written, I copied most of the decision here rather than give you my analysis of it.

Dale Shorter appeals his conviction following a jury trial of possession of cocaine base. The following facts are supported by the evidence presented at trial: At about 5:15 p.m. on January 14, 2008, a team of law enforcement officers executed a search warrant at the home of Robert Randolph. As officers got close to the front door they heard someone yell that the “cops are here.” Officer Michael Greenleaf was the first to enter the residence. He observed Shorter “run from [the] hallway and duck into a bedroom.” Shorter was found in the northeast bedroom of the residence. After the residence and its occupants were secured, the officers searched the premises. Officer Matthew Allers found a plastic bag in the toilet containing crack cocaine. The bathroom was off the hallway about five or six feet from the door to the northeast bedroom.

Debbie Cole and Limmie Brown were called as defense witnesses at trial. Cole testified that she lived at the Randolph residence in the northeast bedroom, which she shared with Les Broom. She stated she was in her bedroom the day of the search. Cole further testified that Shorter had come to the house and asked for Broom. According to Cole, Shorter was sitting on the bed in the northeast bedroom waiting for Broom to return when the officers entered the residence.

Limmie Brown testified that she was at the Randolph residence on the day of the search. She testified Shorter asked for Broom and then went directly to the northeast bedroom when he arrived at the residence. Brown testified that Shorter was in the bedroom talking to Cole when the police arrived.. That count charged Shorter with possession with intent to deliver cocaine base.

Unlawful possession of a controlled substance requires proof that the defendant: (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. Possession can be either actual or constructive. Actual possession occurs when the controlled substance is found on the defendant’s person. Constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it.

Our supreme court discussed the concept of constructive possession. The court stated:

…Constructive possession is all that is necessary and occurs when the accused maintains control or a right to control the narcotic; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.

…If the premises on which the drugs are found are exclusively accessible to the accused and subject to his use, possession or control, knowledge of their presence on such premises . . . coupled with his ability to maintain dominion and control . . . may be inferred.

…Knowledge of the drugs, as well as of their presence . . . may be shown by the conduct, behavior and declarations of the accused.

The court further noted: [W]here the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.

The court also observed that where circumstantial evidence alone is relied on for an essential element of a possession charge, “the circumstances must be entirely consistent with defendant’s guilt, wholly inconsistent with any rational hypothesis of his innocence, and so convincing as to exclude any reasonable doubt that defendant was guilty of the offense charged.” Proof of opportunity of access to the place where contraband is found will not, without more, support a finding of unlawful possession.

For the reasons that follow, we do not believe the evidence presented at trial rose to the level necessary to convict Shorter. The house searched by the police did not belong to Shorter, and he did not live there. Shorter arrived at the residence approximately one-half hour before the police approached the home to execute the warrant. Police were aware there was drug activity in the home before Shorter arrived. Both Cole and Brown testified Shorter went into the northeast bedroom upon his arrival to wait for Les Broom, and that he was there when the police arrived. No direct evidence was presented at trial to establish Shorter had possession of the cocaine base prior to the raid. The drugs at issue here were not in plain view. No officer observed any items being thrown into the toilet during the search by Shorter, or any other person. No one observed Shorter in the bathroom. The evidence does not establish how long the drugs had been in the toilet. The officers were not able to testify that the water was swirling or that the tank was filling when the drugs were discovered. No fingerprints were found on the outer bag or any of the smaller plastic bags. Shorter made no statements acknowledging a connection to the drugs. Others in the house were in motion in the home when the police arrived and could have thrown the drugs in the toilet.