State v. Brown

Pashman, J.,

dissenting. I respectfully dissent. Although I concede that resolution of the issue here presented is a most difficult task, in my view the evidence of constructive possession adduced below was insufficient to send the question of defendant’s guilt to the jury. The majority’s holding to the contrary represents an unwarranted departure from the standards which we recently espoused in State v. Sapp, 71 N. J. 476 (1976), rev’g on dissenting opinion below, 144 N. J. Super. 455, 460 (App. Div. 1975). I would therefore reverse defendant’s convictions and remand for entry of-judgments of acquittal.

*602 I

• Defendant in this case was-found by the jury to he guilty-of possession of heroin and possession with intent to distribute. Since no narcotics were found on his person at the time of arrest, we must determine whether based upon the evidence adduced below a reasonable juror could have concluded beyond a reasonable doubt that defendant was in “constructive possession” of the heroin. That is, we must decide whether there was sufficient evidence to establish that defendant had both knowledge of and dominion over the illicit substance. See, e. g., State v. Davis, 68 N. J. 69, 82 (1975); State v. Reed, 34 N. J. 554, 557 (1961).

It is, of course, impossible to enumerate each and every consideration which may, in a given case, bear upon a finding of constructive possession. Whether a particular defendant knew of or exercised control over narcotics not located upon his person are determinations which necessarily depend upon the totality of the facts and circumstances present in the specific case. Certain factors — those which will likely appear in a large number of situations —• can, however, be set forth.

Defendant’s relationship to the premises in which the narcotics are found will obviously bear upon his knowledge of their existence and his dominion over them. A permanent resident of a dwelling may more easily be assumed to exercise control over such illegal substances than may a casual visitor. Similarly, knowledge and dominion may more readily be attributed to a sole occupant than to one of many residents. In multi-resident dwellings, the relationship between the occupants is also relevant.

Presence of the illicit material in plain view will also bear upon ■ defendant’s culpability. Where the proscribed narcotics are unconcealed, one can generally infer that the defendant knew of their existence. Dominion, however, may still have to be demonstrated by other means. Plain view combined with sole presence at the time of the arrest, for *603 example, would create a strong case for constructive possession. Conversely, mere presence in the household with numerous other persons would, without more, be insufficient. See State v. Sapp, supra.

In many cases the critical factor will be defendant’s relationship to the particular place within the dwelling where the narcotics are located. If they are found in an area peculiarly within defendant’s control, such as among his personal effects, a strong inference of possession arises. Although it is not necessary that the area be under defendant’s exclusive domain, the strength of the presumption will obviously vary with the location’s accessability to others. Conversely, culpability will be more difficult to establish where the narcotics are found in an area controlled by someone other than the defendant. 1

Other considerations bearing upon the issue of constructive possession include: (1) the nature of the narcotic, its traffic and use; (2) the presence of narcotics paraphernalia in areas indicating defendant’s knowledge thereof or dominion there-over; (3) the consistent presence of known narcotics users on the premises; (4) the quantity of the drug found; (5) defendant’s proximity to the drugs at the time of search or arrest; and (6) incriminating statements or actions. At bottom, the judge must evaluate the evidence by looking at the totality of circumstances in the light of practical experience.

*604 II

Turning to the facts of this ease, it is clear that the State’s case suffered from many substantial weaknesses. The prosecution did not demonstrate that defendant was the sole resident of the apartment or attempt to show his relationship to any other occupants who may have there resided. The State provided no testimony linking defendant to the particular bedroom where the narcotics were found. It failed to even suggest ownership of the dress in which they were hidden. Eurther, the prosecution neglected to demonstrate that the narcotics paraphernalia were found in areas over which defendant had dominion or where he was sure to know of them. Finally, the State failed to address Wallace Young’s relationship to the apartment, although he was present in the dwelling at the time of the arrest, and inexplicably never established the nature of the white powder found upon his person. These deficiencies are particularly troublesome because they could have been avoided, at least in part, by more thorough investigation and preparation on the part of the police and prosecution.

In light of these glaring weaknesses, I cannot accept the conclusion that there was sufficient evidence for a jury to conclude beyond a reasonable doubt that defendant was guilty of possession and possession with intent to distribute. The majority’s finding to the contrary is based upon a series of inferences which clearly cannot satisfy the heavy burden required of the prosecution in criminal matters.

The majority’s attempt to distinguish this case from Sapp is unconvincing. In fact, a comparison of the two cases reveals a close similarity. In neither case did the prosecution demonstrate that the dwelling was tenanted solely by the defendant. In both cases, individuals known to be involved in the narcotics trade were noted about the premises. 2 *605 Narcotics paraphernalia were, as the majority acknowledges, found in each of the premises. Moreover, in both instances' other individuals located within the dwelling at the time of arrest were found to have narcotic substances upon their persons. 3 Einally, heroin was involved in Sapp as well as here.

The differences between this ease and Sapp are also instructive. There, the narcotics were found in the very room in which the defendant slept. Moreover, they were, at least in part, open to plain view at a time when defendant was in the room. Here, the heroin was hidden in a dress of unknown ownership in a bedroom to which defendant’s connection was never established. 4 The narcotics paraphernalia *606 involved in Sapp were plentiful and were located in areas clearly implicating defendant’s knowledge thereof. In the present case, no- evidence as to the location of the paraphernalia was ever introduced. Thus, the evidence here is even less sufficient than in Sapp and acquittal more clearly mandated.

The majority’s holding to the contrary is predicated upon the conclusion that in this case “the quality of the shared occupancy of the premises” differed from that extant in Sapp. This finding on the majority’s part is somewhat puzzling, given that no evidence was adduced below bearing upon the “quality of the. shared occupancy” in the Brown residence. As detailed supra, the prosecution presented no proof relating to the number of individuals who lived in the apartment in question. Nor did it even attempt to demonstrate defendant’s relationship to any other persons who may have there resided. 5 Thus, the majority has upheld defendant’s convictions because of the “quality” of his shared occupancy despite the fact that this “quality” cannot be ascertained from the record below. In effect, the majority has ruled that defendant bears the burden to show that his living arrangement was similar to that involved in Sapp. In so doing, it has ignored the long established principle that the State must prove defendant’s guilt beyond a reasonable *607 doubt. Defendant is not required to prove Ms freedom from guilt. See In re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L. Ed. 2d 368 (1970).

Perhaps in recognition of the absurdity of attempting to distinguish this case from Sapp, the majority proceeds to overrule that decision in part. In the words of the majority, Sapp is “disapproved” to the extent that it

did not give appropriate weight to the availability of the inferences to be drawn from all of the surrounding circumstances and the jury’s right to draw those inferences and to consider them in their totality in concluding that defendant was guilty beyond a reasonable doubt.

[Ante at 599]

The majority’s holding in this regard is unsound in at least two respects. Eirst, it is unclear what portion of Sapp the majority is in fact overruling. Is the result of that ease “disapproved”? Or, rather, is its flaw the manner in which that result was reached? If the latter, which part, of its reasoning is no longer to be followed? The lack of clarity in the majority’s holding will merely serve to confuse trial judges in their effort to apply the law in this area.

Second, and more importantly, the majority errs in departing at all from the approach which we endorsed in Sapp. In my view, defendant’s presence with other persons in a dwelling in which narcotics are found cannot without more constitute sufficient evidence to support a conviction for possession of those narcotics. State v. Sapp, supra. The majority’s contrary conclusion elevates the fear of judicial “naivete” above the presumption of innocence as well as the burden of proof required of the State in criminal prosecutions. It thus appears to reverse what I had thought was a deeply engrained constitutional principle — “that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U. S. 358, 372 , 90 S. Ct. 1068, 1077 , 25 L. Ed. 2d 368, 380 (1970) (Harlan, J., concurring). See Speiser v. Randall, 357 U. S. 513, 525-526 , 78 S. Ct. 1332, *608 1341-1342 , 2 L. Ed. 2d 1460, 1472 (1958). See generally Underwood, “The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases,” 86 Yale L. J. 1299 (1977). In my view, this is a difficult case in which that well-established axiom should govern.

Por the foregoing reasons, I would affirm the judgment of the Appellate Division and remand for entry of judgments of acquittal.

Justice Clifford joins in this dissenting opinion.

For reversal and remandment — Chief Justice Hughes and Justices Mountain, Sullivan, Soheeibee and Handler — 5.

For affirmance — Justices P ashman and Clifford — 2.

The majority states that “ownership of the [drug] by another would not become relevant unless totally inconsistent and incompatible with the defendant’s possession of it * * See ante at 598. Its conclusion in this regard is simply erroneous. Although ownership of the drug is clearly not a necessary or controlling factor in a constructive possession case, it is just as obvious that ownership by another person will in many cases negate inferences of control. Thus ownership is a relevant factor which the jury may assess even where that ownership is not such as totally excludes the possibility of defendant’s control.

It should also be noted that the three known users involved in this case were only seen to enter the apartment complex and not defendant’s apartment specifically.

In Sapp one person was found attempting to swallow 21 glassine envelopes of heroin while the search of another individual revealed a methadone biscuit in his coat. Further, it should be noted that the white powder found in this case in Wallace Young’s pants pocket was never proven to be a narcotic. Thus, the majority again relies upon an entirely unsubstantiated assumption.

Cases in other jurisdictions have held that acquittal must be ordered where defendant's connection to the place where the narcotics are located cannot be established. See, e. g., Smith v. State, 279 So. 2d 27 (Fla. Sup. Ct. 1973) (husband acquitted where narcotics were found in master bedroom among wife’s possessions) ; Jordan v. State, 344 So. 2d 1294 (Fla. Dist. Ct. App. 1977) (defendant cannot be convicted where drugs were found in apartment which he shared with one roommate) ; Garrison v. State, 272 Md. 123 , 321 A. 2d 767 (Ct. App. 1974) (wife with recent needle marks acquitted of heroin possession where husband was found flushing large quantity of heroin down toilet while wife was in nearby room) ; Barksdale v. State, 15 Md. App. 469 , 291 A. 2d 495 (Ct. Spec. App. 1972) (male “friend” with fresh needle marks not culpable where eight glassine bags of heroin found in female companion’s purse, 20 bags in her cigarette case and 46 bags inside her vagina) ; Puckett v. State, 13 Md. App. 584 , 284 A. 2d 252 (Ct. Spec. App. 1971) (husband who was often away from home acquitted where wife grew 16 marijuana plants in backyard) ; Scott v. State, 7 Md. App. 505 , 256 A. 2d 384 (Ct. Spec. App. 1969) (narcotics found in sister’s purse in home where both resided insufficient to establish defendant’s guilt even where he was found in possession of other narcotics) ; Com-

*606 monwealth v. Hannan, 229 Pa. Super. 540 , 331 A. 2d 503 (Super. Ct. 1974) (husband acquitted where narcotics were found in master bedroom in wife’s purse and dresser).

Ownership of the dress is thus relevant not because of any necessity for showing ownership of the drug, see n. 1, supra, but rather for the obvious proposition that one is more likely aware, and in control, of substances located in one’s possessions than in the clothing of others.

It should be noted that another person, not present at the time of arrest, was separately indicted for the same crimes and that the lease to- the apartment was apparently in that other person’s name. This, along with the presence of at least one non-masculine item of clothing — that is, the dress — indicates that defendant was likely riot the sole tenant.