Possession

Facts:

A young man standing in a yard at night spots a police officer and flees. The police officer goes to where the young man had been standing and finds drugs. The young man is later apprehended and charged with possession of a controlled substance even though no drugs are found on him.

Issue:

Was the young man in possession of the drugs?

Short Answer:

No. The evidence is insufficient to prove beyond a reasonable doubt that the young man possessed—had care, custody, control, or management over—the drugs. While it is true the young man ran when he saw the police and the police found drugs where he was standing, the police did not see the young man holding anything before he started running; the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them, and the police did not see the young man drop or throw anything when he ran.

Discussion:

A person must have “actual care, custody, control, or management” over a controlled substance for her to possess it, and it need not be found on her body. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon 2003); Williams v. State, 906 S.W.2d 58, 65-66 (Tex. App.—Tyler 1995, pet. ref’d). And the person does not need to have exclusive possession of the place where the drugs are found. Howell v. State, 906 S.W.2d 248, 252-53 (Tex. App.—Fort Worth 1995, pet. ref’d). But the person’s mere presence at the location where a controlled substance is found is “insufficient, by itself,” to convict a person for possessing the controlled substance. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Rather, the State must establish an affirmative link between the person and the controlled substance. Id. at 162. To establish this “affirmative link,” courts have used numerous factors—including a person’s presence at the location where drugs are found—none of which are necessary to prove the affirmative link between the person and the controlled substance. Parker v. State, 192 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). And it is not the number of factors in a particular case but the “logical force” created by the factors which proves or disproves the person’s contact with the controlled substance was not simply “fortuitous.” Id.

The following is a list of non-exclusive factors which the courts have used to determine whether there is an affirmative link between a person and a controlled substance:

(1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the strong odor of [drugs] was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; (13) traces of the contraband were found on the accused; and (14) affirmative statements connect the accused to the contraband.

Howell v. State, 906 S.W.2d 248, 252-53 (Tex. App.—Fort Worth 1995, pet. ref’d). Other courts have added “[15] the place where the contraband was found was enclosed, [16] the quantity of the drugs found, [17] the accused possessed a key to the locked location of the drugs, and [18] the accused was in close proximity to a large quantity of contraband.” Broche v. State, 927 S.W.2d 745, 751 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).[1]

In Simmons v. State, 100 S.W.3d 484 (Tex. App.—Texarkana 2003, pet. ref’d), the court used several of these factors to find Simmons was in possession of drugs. A police officer spotted a speeding car in which Simmons was a passenger and pulled it over. Id. at 488. When the car stopped, Simmons fled the car into nearby woods carrying a white bag. Id. The officer called for a canine unit to search for Simmons, and during the search, the canine found a white Wendy’s bag buried under a pile of leaves which matched the description of the bag the officer saw Simmons carrying. Id. at 489. Inside the bag was 1000 grams of cocaine. Id. Simmons was apprehended and convicted for possession of cocaine with the intent to distribute. Id. Simmons argued the State had failed to prove an affirmative link between Simmons and the cocaine, but the court enumerated the factors which proved the affirmative link: (1) Simmons fled into the woods when the officer stopped the car he was riding in; (2) the officer who stopped them saw Simmons carrying a white bag while he fled; (3) the police found a white bag matching the description of the bag the officer saw, and (4) someone had made great efforts to conceal the bag beneath a pile of leaves. Id. at 491. Therefore, the court overruled Simmons’ argument. Id.

Additionally, in In re J.M.C.D., 190 S.W.3d 779 (Tex. App.—El Paso 2006, no pet.), a border patrolman near El Paso spotted six individuals attempting to cross the Mexico-United States border at 3:30 a.m. Id. at 780. Five of the individuals were hunched over, indicating to the patrolman that they were carrying large quantities of drugs. Id. The patrolman pursued the individuals who ran from him. Id. The patrolman apprehended the individuals in an irrigation ditch but did not find any drugs on them. Id. But the patrolman followed the footprints leading to the ditch to five backpacks containing a total of 266 pounds of marijuana. Id. The court held J.M.C.D. was in possession of the marijuana because (1) the marijuana was found near where J.M.C.D. had been standing, as evidenced by the trail of footprints; (2) J.M.C.D. had run from the patrolman; (3) the patrolman saw six individuals carrying something and apprehended six individuals, including J.M.C.D., who were not carrying anything but whose footprints led to 266 pounds of marijuana, and (4) it was unlikely another person “would have discarded such a large quantity of marijuana.” Id at 781. That is, the logical force created by these factors affirmatively linked J.M.C.D. to the marijuana and proved his contact with it was not merely fortuitous.

And like Simmons and J.C.M.D., the police did not find drugs on the young man. Instead, they found drugs in a yard where the young man had been standing. But the young man did not have exclusive possession of the yard, and someone else may have discarded or dropped the drugs. Because the young man did not have exclusive possession of the yard, the State must prove an affirmative link between the young man and the drugs.

To establish an affirmative link between the young man and the boy, the court will consider the factors surrounding the discovery of the drugs and the arrest of the young man. Like Simmons and J.C.M.D., (1) the young man was near where the drugs were found, and (2) he ran when he saw the police, indicating a consciousness of guilt. But unlike Simmons and J.C.M.D., (3) the police did not see the young man holding anything before he started running, and (4) the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them. And (5) the police did not see the young man drop or throw anything when he ran.

The decisive distinction between the young man and Simmons and J.C.M.D. is that the police did not see the young man holding anything prior to the chase, nor did they see him make any motion to discard anything before he started running. See Hawkins v. State, 99 S.W.3d 890, 895-96 (Tex.App.—Corpus Christi 2003) rev’d on other grounds, 135 S.W.3d 72, (Tex. Crim. App. 2004); Richardson v. State, 2003 WL 1848624 *1, *4 (Tex.App.—Dallas, April 10, 2003) (not designated for publication); Supra note 1. Consider also Tatum v. State, 836 S.W.2d 323, 324, 327 (Tex. App.—Austin 1992, pet. ref’d). Had the arresting officers seen him holding or discard something, the courts would have found the young man to have had care, custody, control or management over the drugs found in the yard. But because the officers did not see the young man holding or discard anything, there is little logical force linking the young man to the drugs. And the State fails to create an affirmative link between the young man and the drugs because the connection between them is merely fortuitous.

Therefore, the young man was not in possession of the drugs.

Conclusion:

The factors indicating the young man was in possession of the drugs—the drugs were conveniently accessible to the young man when he was standing in the yard, and the young man ran when he saw the police, indicating a consciousness of guilt—do not affirmatively link him to the drugs because the police did not see the young man holding anything before he started running; the quantity of drugs found where the young man was standing was small, making it more likely that someone else may have inadvertently dropped or discarded them, and the police did not see the young man drop or throw anything when he ran.

Endnote:

[1] This has been the standard for more than fifteen years. Prior to the establishment of these principles, the Austin Court of Appeals decided Tatum v. State. At least one court of appeals has refused to consider Tatum as precedent because of its use of the outdated legal standard. See Arevalo v. State, 2006 WL 332627 *3, (Tex. App.—San Antonio Feb. 15, 2006, pet. ref’d) (not designated for publication). But the facts in Tatum best approximate the facts presented, and the case may prove useful.

In Tatum, the police approached an abandoned building in an attempt to find two men. 836 S.W.2d 323, 323 (Tex. App.—Austin 1992, pet. ref’d). Tatum was in the building, and when he saw the police, he climbed out a window and ran. Id. The police chased Tatum, and after he hopped a fence, Tatum fell. Id. Tatum attempted to get up and run but was apprehended. Id. at 324. Near Tatum, the police found a syringe filled with cocaine. Id. The police did not see anything in Tatum’s hands during the chase and only saw Tatum make two minor gestures right before he was apprehended. Id. And the area where Tatum was apprehended was known to be a high-drug use area. Id. Considering these facts, the court held the evidence was insufficient to create an affirmative link between Tatum and the syringe. Id. at 327.