What does it take to prove a defendant's possession of drugs in his co-defendant's house?

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.  

Supreme Court agrees that warrantless DUI blood draw illegal, but still unanswered questions.

The Supreme Court has released its opinion in Missouri v. McNeely. This is a case about a Missouri officer's decision to conduct a warrantless blood draw in a DUI arrest. Unfortunately, the four separate opinions issued by the justices raise more questions than they answer. The warrantless blood draw here was found to be a violation by the Missouri's highest court and this finding was upheld by the U.S. Supreme Court.

The biggest takeaway from the Court’s majority and two supporting opinions is that in the future every case will be judged on its own merits. While this provides substantial flexibility to both law enforcement officials and judges, it fails to create a bright line rule that officers might rely on when out making traffic stops. The only thing clear from the Court’s Wednesday ruling is that none of the justices were willing to go so far as to say that officers investigating drunk driving cases must always obtain a warrant before conducting a blood draw. Officers are instead left to conclude that getting a warrant is the best outcome and the only way to ensure that a drunk driving arrest is not later tossed out of court beacuse of a constitutional concerns.

The majority opinion, written by Justice Sonia Sotomayor, found that the natural dissipation of alcohol in a defendant’s system does not serve as sufficient justification to ignore constitutional warrant requirements. Justice Sotomayor wrote that officers should generally get a warrant before conducting such a test. Emergencies that permit a deviation from this general rule can only be decided on a case-by-case basis, though officers should be careful and understand that these circumstances are rare and that most cases allow for plenty of time to obtain a warrant.

In this case, the majority sided with Missouri’s Supreme Court, which threw out a warrantless blood test obtained after an officer puled over Tyler McNeely on suspicion of drunk driving. Justice Sotomayor wrote that though there would be some cases that could arise where delays may justify a blood test without judicial authorization, she did not believe that this was often the case and that a small delay would not seriously hamper the ability of the government to prosecute drunk drivers in the future.

In a curious alliance, Justice Sotomayor had the backing of Justices Scalia, Kennedy, Ginsburg and Kagan. Justice Thomas was the only justice to completely dissent, saying that he believed the dissipation of alcohol in the bloodstream created an emergency that did not require a warrant.

Chief Justice Roberts agreed with the outcome of the case, but criticized the vagueness of the majority’s opinion. Robert’s wrote that a police officer reading the opinion would have no idea what the Fourth Amendment requires of him. Though his critique was stinging, Roberts failed to come up with a better solution. Roberts’ rule stated that if there is time to secure a warrant then the arresting officer must secure one. If, however, an officer can reasonably conclude there is not enough time to secure a warrant without compromising the results of the test, then a warrantless blood draw can proceed. Clear as mud.

To read the full opinion, click here.

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Sixth Circuit Permits Warrantless Search In Tennessee Case

The case, U.S. v. Kevin Patrick Daws, involves sheriff’s deputies in Henderson County, Tennessee who conducted a warrantless search of Kevin Daws’ home based on a public safety issue. The question was whether the threat posed by Daws justified the search of the house, something the Sixth Circuit Court of Appeals ultimately decided it did.

The incident began after a home invasion in 2010. Daws had smashed through a window of an acquaintance’s house, shoving a shotgun in the man’s face while demanding cash. Before leaving, Daws told the victim that if he ever called the police Daws would kill him. Later that same night Daws invaded the home of yet another acquaintance and demanded that the man store his shotgun and money, yet again insisting that if the victim informed police of Daws’ actions that Daws would return and kill the man.

Unsurprisingly, both men called the police that night and reported the incidents. One of the responding officers had previously worked as a correctional officer at a prison where Daws served time for aggravated burglary and remembered hearing how Daws had fired a weapon in his front yard and held up a gas station attendant at gunpoint. Based on the two incidents that had occurred earlier that evening and the background knowledge of the officer, the deputies decided it was best to arrest Daws as soon as possible and to do so carefully, calling for backup and to put on body armor.

After arriving at the house, the officers noticed an accomplice on the front porch crying, talking on the phone about how he and Daws had done something bad and would be going to jail as a result. The officers arrested the man who informed them that Daws was inside and asleep. The officers then took this as an opportunity to move in without possible armed resistance, and entered through an open back door and found Daws asleep in the living room. After detaining Daws, a sweep of the house turned up the shotgun used in the earlier home invasions.

Daws was charged with possession of a firearm by a convicted felon, ultimately pleading guilty and being sentenced to 210 months in prison. Daws decided to appeal the district court’ decision, arguing the evidence found in the house should have been suppressed due to the lack of a warrant.

The Sixth Circuit, however, was not convinced. Instead, the Court walked through all the reasons why the officers were justified in entering Daws’ home immediately, without the delay of seeking a warrant. Given Daws’ behavior that evening, his prior instances of violence, threats to others and his ability to escape into the wilderness around his house, the Sixth Circuit decided that the situation presented a case where there was potential for injury to the officers and thus there was a need for swift action. The Court agreed that waiting to get a warrant would have heightened the risk that Daws would act on the threats or, at the very least, escape.

The Sixth Circuit found that the Fourth Amendment does not require that police ignore real risks of a shootout or of a suspect’s escape and can instead take action if there is a reason to do so. In this case, Daws’ own behavior justified quick action on the part of the officers and thus no warrant was necessary before entering Daws’ home.

To read the full opinion, click here.

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NY Times Publishes Interesting Article on Death Penalty Statistics

The NY Times, on April 5th, published an article focusing on the death penalty and its enforcement in the 32 states that still observe it. It is no secret that the death penalty is enforced in an odd way, sometimes appearing sporadic and random. The article, focusing particularly on Arizona and its enforcement of the death penality, outlines a common situation courts face.

In our area, with the prevalence of gang activity, it is not hard to imagine a crime involving multiple defendants with different levels of responsibility.  In a murder case, the court might be faced with 5 or 6 defendants who were involved in various ways. Without going into many scenarios, one defendant would likely act as the instigator, while another may serve as a lookout. All are likely to be charged with murder. Which ones, if not all, are then chosen to face the death penalty? Should all 5 or 6 face the death penality? Should the instigator? Should the lookout?

The article highlights a case such as this in Arizona involving multiple defendants accused of murder. Three of the four defendants, as a result of plea bargaining, entered guilty pleas receiving sentences of various terms of imprisonment. Those three defendants included the instigator, and two others who helped with the beating. The fourth defendant, who "by all accounts was not directly involved in the killing," received the death penalty.

It is not uncommon for the defendant with the least amount of culpability to receive the harshest sentence. The most reasonable explanation for this would be the effects of plea bargaining. According to Richard Dieter, the executive director of the Death Penalty Information Center in Washington, D.C., "In an ideal world, the prosecution would have ironclad proof against all the co-defendants to be able to pick the worst for the death penalty, but we have an inequitable system, a bargaining system. If you give the prosecution some help, you'll get something out of it."

Another factor leading to inconsistency in death penalty enforcement is the cost. A capital case can cost at least $1 million to to try, from start to finish. A lot of times, this does not include the cost of the post-conviction appeals. Capital cases are extremely expensive, and oftentimes, that is a deterrent to its enforcement.

Lastly, the article points out that the laws by which prosecutors refer to when deciding whether to seek the death penalty in a certain case are extremely broad. For instance, Tennessee has statutory authority listing 15 aggravating factors for seeking the death penalty. If the jury finds, beyond a reasonable doubt that one of these aggravating factors occurred, the death penalty is appropriate. Some of the factors include;

• If the victim was a government worker;
• If the defendant has been previously convicted of a violent felony;
• If the victim was under the age of 12 and the defendant was over the age of 18;
• Plus many more. 

The full list of aggravating factors can be found here.  The reoccurring problem with lists such as this is that not every murder case which is found to include one of these factors is pursued as a capital case. It would be hard to find a murder that didn't involve one of these factors, and the death penalty is certainly not pursued on every murder case. The article discusses a group of public defenders in Arizona who examined more than 200 first-degree murder cases between 2010 and 2011 in Arizona, using the state's aggravating factors (Arizona has 14 factors), to see if the most egregious murder cases could be separated. Not surprisingly, the result was that nearly all 200 cases possessed at least one of the aggravating factors, and could be pursued as a capital murder case.

The article sought to shine some light on the broad statutory authority used to enforce the death penalty in 32 states, the inconsistencies of the death penalty in multiple-defendant cases, and the budget concerns that have prosecutors hesitating to enforce capital punishment. Mission accomplished!

Sixth Circuit Says Girlfriend’s Spotty Information Reliable Enough To Support Search Warrant

The Sixth Circuit recently released a ruling in a case, U.S. v. Charles Arthur Kinison, involved a man, Mr. Kinison, who began to affiliate with a group of pedophiles in Georgia that sought to adopt children for the sole purpose of molesting them. Curiously, Kinison had a girlfriend at the time and decided to share his interest in the group with the woman. Going even further, Kinison texted back and forth with his girlfriend, who admitted participated in the exchange, explaining his interest in the plan and his love of child pornography. Kinison detailed his favorite online sites and described some of the child pornography he had viewed on the Internet.

Disturbed by Kinison’s behavior, the girlfriend went to police who then downloaded thousands of pages of text messages between the two from the girlfriend’s cell phone. She cooperated with the ongoing police investigation, agreeing to meet with them on three different occasions. The police asked her where Kinison had been viewing the child pornography and she told them it was in his house. However, there was no real evidence obtained by the police to prove that the girlfriend knew this as a fact and was not simply guessing.

Based on the information from the girlfriend and the text messages the police had downloaded, they were able to get a warrant to search the man’s home. When the police arrived, Kinison had just pulled into the driveway with a cell phone clearly out in the center console of his vehicle. The police were able to secure another warrant for the car, based on the phone being in plain view, and ultimately found child pornography on Kinison’s home computer.

Kinison moved to suppress the evidence seized during the search, arguing that the warrant failed to establish probable cause to search his home and car based on the girlfriend’s incomplete knowledge of where the pornography was being viewed. The district court granted Kinison’s motion to suppress.

The case eventually made its way to the Sixth Circuit which found that the girlfriend could be relied on as a police informant because she was not anonymous and the text messages confirmed there was a personal relationship between her and Kinison that gave her some degree of knowledge on the subject. Moreover, the Sixth Circuit said her statements were leant credibility because she was putting herself at risk of criminal prosecution for having engaged in similar conversations with Kinison about kidnapping or adopting a young child for the purpose of molestation.

The Court further found that though the girlfriend’s statement about the location of the pornography may have been a guess, it was an educated guess. The Court said that it’s widely assumed when someone is engaged in such private behavior it would likely occur in in the privacy of his or her own home. Furthermore, the Court found that the police acted in good faith when seeking their warrant which should allow the search even if it was based on a less than complete information.

The Sixth Circuit thus reversed the lower court’s decision to grant Kinison’s motion to suppress and remanded the case for reconsideration.

To read the full opinion, click here.

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Tennessee Supreme Court Says Community Caretaking Not An Excuse For Police Searches Lacking Probable Cause

The Tennessee Supreme Court recently issued an important opinion, State of Tennessee v. James David Moats, which upheld a ruling out of the Court of Criminal Appeals. The opinion threw out the conviction of James David Moats who was found guilty for driving under the influence after an officer found Moats sitting in a grocery store parking lot.

The incident occured in Etowah, TN when an officer was on a routine patrol at 2 in the morning. The officer saw Moats sitting in the driver’s seat of his pick-up truck in an area that the officer described as being known for drug activity. The officer continued on her patrol route and returned several minutes later to find Moats in the same position. That’s when the officer pulled up behind the pick-up truck and flashed the blue lights on her car. The officer then recorded Moats’ license plate number and called it in to dispatch to be checked out.

When the officer approached Moats’ window, she noticed an open beer car in a cup holder and also observed a set of keys in the ignition to the truck. This prompted the officer to administer a field sobriety test and resulted in Moats being taken into custody.

The case progressed to a trial where the arresting officer admitted on the stand that she never witnessed Moats engage in any illegal activity. Moreover, she acknowledged that once she flashed her blue lights, Moats was no longer free to leave the scene. The trial court judge found that it was acceptable for the officer to approach the vehicle and ask to see identification and proof of registration despite a lack of reasonable suspicion of criminal activity because the officer was acting under a doctrine known as community caretaking.

Community caretaking refers to a kind of behavior that takes place between officers and citizens that is consensual and unrelated to the investigation of any specific criminal activity. Essentially, community caretaking occurs when officers are merely informally talking to citizens, not investigating a crime.

The case was appealed and the Court of Criminal Appeals found that the trial court was incorrect in supporting the officer’s actions. The Court found that the encounter with Moats was not voluntary and therefore the encounter should be seen as investigative rather than consensual given that Moats was not free to leave. That means the community caretaking doctrine could not be used to justify the officer’s actions that night.

The case finally made its way to the Tennessee Supreme Court, which agreed with the Court of Criminal Appeals. The Supreme Court held that though there is no categorical rule that once an officer turns on their lights constitutional protections then go into effect, a reasonable view of the circumstances that night show that the officer used her blue lights as a demonstration of her authority. This show of authority was done without any probable cause or reasonable belief that a crime had occurred.

The Supreme Court went on to say that while the community caretaking role of an officer is an important one, it must be exercised in a strictly consensual way. An officer cannot claim to be engaged in an informal conversation with a citizen if they have simultaneously made a show of authority which would lead that person to believe they were required to stay.

The dissenting justices believed the majority was wrong in overturning the trial court’s decision. They instead believed that there should be a special community caretaking exception to the Fourth Amendment’s requirement that officers have probable cause before engaging in a search and seizure.

To read the full opinion, click here.

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