Mere Presence

Mere Presence

Constructive possession and joint possession widen the group of people the law will call possessors. The first reaches a person who controls an item without holding it, and the second reaches each of several people who share that control. Both extensions need a counterweight, because without one the offense would sweep in anyone who happened to be standing near contraband. The counterweight is the mere presence rule: being in the room, the car, or the home where contraband turns up does not by itself make a person a possessor. The prosecution must prove that the defendant knew of the item and had both the power and the intent to control its disposition or use.¹

The reason lies in what proximity proves. People are constantly near things they neither know about nor control: a guest sits in a living room with a stash behind the couch, and a passenger rides in a car whose trunk holds something the driver put there. Location fits innocence as comfortably as it fits guilt, and a rule that treated it as possession would convict people for where they were and whom they were with, rather than for any choice to hold the item. Each part of the test screens out a different person. The knowledge requirement screens out the person who never knew the item was there, and the power-and-intent requirement screens out the person who knew but could not or would not exercise control. Presence still counts as a piece of evidence, since it may help show that the defendant could reach the item, but it is never the whole case.

In Kimbrell, a trafficking prosecution, the rule shows up in two separate rulings. The statute reached a person who was knowingly in actual or constructive possession of ten or more grams of cocaine.² After an undercover agent signaled the other officers to begin the arrest, Kimbrell ran out of a bedroom in a mobile home shouting that a car had just pulled up, ran back in, and closed the door, and the officers found her sitting on the bed with the butt of a pistol protruding from her pocketbook.³

The first ruling concerned her motion for a directed verdict, which asks the judge to take the case from the jury for want of evidence. On that motion the evidence is viewed in the light most favorable to the State, and a jury issue exists whenever any direct or circumstantial evidence reasonably tends to prove guilt.⁴ The State had evidence that Kimbrell actually knew of the cocaine, and because actual knowledge is strong evidence of intent to control, the court allowed it to stand in for separate proof of intent. Possession may also be inferred from circumstances, so the jury could infer that she had both the power and the intent to control the cocaine while the others were outside, and the court held that the case was properly submitted to the jury.⁵

The second ruling concerned the jury charge, and it produced the reversal. Kimbrell had asked the judge to instruct that mere presence, where the drugs are present, would not be sufficient to convict without more. The court agreed that the request correctly stated the law and that the charge actually given did not adequately cover its substance. Refusing a requested charge on an issue raised by the indictment and the evidence is error, and failure to charge on mere presence was reversible error, so the case was reversed and remanded.⁶

The two rulings answer different questions, and keeping them apart prevents a common mistake. Sufficiency asks whether a rational jury could find possession on this evidence, taking the evidence in the light most favorable to the State, and the answer for Kimbrell was yes. The instruction question asks whether the jury was told the legal rule it must apply to that evidence, and the answer was no. A jury that learns the defendant was in the room with the contraband, and hears nothing about what presence means, can slide from "she was there" to "she possessed it." The mere-presence charge closes that gap by telling jurors that location cannot convict by itself and that they must find knowledge together with power and intent. Strong evidence of knowledge does not cure the omission, because the jury decides how strong the evidence is, and it must decide under the correct standard.

The same principle explains why courts decline to stretch the word possession to cover a substance that is merely in or on the defendant. In State v. Lewis, a Minnesota appellate decision, the mere presence of a controlled substance in the defendant's urine did not constitute possession under a statute prohibiting unlawful possession of a controlled substance.⁷ Once a substance is in the body, there is nothing left whose disposition or use the defendant can control, so the power-and-intent element has nothing to attach to. This is one state's treatment under its own statute, and a reader should not assume that every jurisdiction words or reads its statute the same way.

Presence is not worthless as evidence, and the law sometimes lets a jury draw an inference from it. In County Court of Ulster County v. Allen, police halted a car for speeding, and two loaded handguns turned up in the pocketbook of the youngest occupant, a sixteen-year-old girl riding with three adult men.⁸ The New York statute, as the trial judge explained it to the jury, made the presence of a loaded handgun in an automobile presumptive evidence of its unlawful possession by each occupant.⁹ The Supreme Court treated that presumption as permissive. It was only part of the prosecution's case, the jury could ignore it even if the defendants offered no rebuttal, and the judge had told the jury that constructive possession requires the intent and ability to exercise control or dominion.¹⁰

What made the inference rational on that record is the contrast with bare presence. The Court observed that the respondents were not "hitchhikers or other casual passengers," that the guns were too large to be concealed in the handbag, and that the bag was therefore open, with part of one gun in plain view and within easy reach of the driver and perhaps of the rear-seat occupants.¹¹ It reasoned that the case resembled one in which the guns lay in plain view of every occupant, where it is rational to infer that each was aware of them and had both the ability and the intent to exercise dominion and control.¹² The jury did not treat the car as a single bloc, either. It convicted all four occupants of possessing the guns in the front seat and acquitted all four of possessing the machinegun and heroin in the trunk, which the Court read as showing that the jury attached significance to where the contraband was.¹³ The statute's device is an example of a permissible inference, which lets a factfinder treat an element as established from other proved facts without requiring it. In a footnote to Mullaney v. Wilbur, a homicide case, the Court cited the inference of knowledge from presence at an illegal still as another example and noted that such devices must satisfy due process.¹⁴ The mere-presence rule therefore leaves room for inference but forbids treating location as automatic possession, and the line between the two is whether circumstances beyond location tie the defendant to the item.

Proximity can fall short even when the defendant is in the same room as the contraband and is plainly part of the criminal venture. In United States v. Zavala Maldonado, Zavala and a man named Santos waited in a hotel room for Palestino to arrive, with a bag of cocaine in the room. The court found it at least arguable that Zavala did not possess the drugs while the two men sat there together, because there was no evidence that he touched the bag or saw the cocaine, Santos apparently had exclusive control of it, Zavala was not the named person to whom it was to be delivered, and Santos had refused Zavala's suggestion that the bag be entrusted to Zavala's friends in another room.¹⁵ An arrest at that point, the court said, might have required a directed verdict of acquittal. The situation changed when both men left the room: Santos surrendered his actual possession, and with both men's acquiescence the drugs were secured in Zavala's room, so a jury could find that Zavala had sufficient power to control the drugs and an intention to exercise it. The court stressed that Zavala had not moved closer to the drugs, since he had moved farther away.¹⁶ Across these decisions, the facts that carry a possession case are the ones that link the defendant to the item, namely awareness, access, and control over the space, and distance from the item is not one of them.

The first version is the casual passenger the Allen Court distinguished, and the second is the occupant whose circumstances supply what presence alone cannot. Even in the second version the inference belongs to the jury, which may reject it, and if the defendant requests a correct mere-presence charge the instructions must still tell jurors that location alone is not enough.

Students lose this issue when they reason that sufficient evidence of knowledge ends the matter, because a conviction that survives a directed-verdict motion can still be reversed when the jury was never told that presence is not enough.¹⁷