stating that to infer possession of a controlled substance where the defendant lacks exclusive possession of the premises, defendant must have knowledge of the substance and control over it
How later courts described this case
- stating that to infer possession of a controlled substance where the defendant lacks exclusive possession of the premises, defendant must have knowledge of the substance and control over it
- noting the “lawfulness of the arrest without warrant, in turn must be based upon probable cause … that an offense has been or is being committed” (emphasis added) (quotation omitted)
Written by the judges who cited it.
The opinion
MORGAN, Judge
(concurring).
In his Dissenting Opinion, Judge Seiler states that : “The United States Supreme Court has ruled invalid a search and seizure which closely resembles the facts here, but which is not discussed by the principal opinion. * * * The factual similarity between Vale [Vale v. Louisiana, 399 U.S. 30 , 90 S.Ct. 1969 , 26 L.Ed.2d 409 (1970)] and the case at bar leaves little room for doubt that it is controlling here.”
It is respectfully suggested that such statements are ill-founded in view of the following excerpt from the Vale case (l. c. 35, 90 S.Ct. 1972 ): “There is no suggestion that anyone consented to the search. Cf. Zap v. United States, 328 U.S. 624, 628 , 66 S.Ct. 1277, 1279 , 90 L.Ed. 1477 . The officers were not responding to an emergency. United States v. Jeffers, supra, 342 U.S. at 52, 72 S.Ct. at 95; McDonald v. United States, supra, 335 U.S. at 454, 69 S.Ct. at 192. They were not in hot pursuit of a fleeing felon. Warden v. Hayden, 387 U. S. 294, 298-299 , 87 S.Ct. 1642, 1645-1646 , 18 L.Ed.2d 782 ; Chapman v. United States, 365 U.S. 610, 615 , 81 S.Ct. 776, 779 , 5 L.Ed.2d 828 ; Johnson v. United States, 333 U.S. 10, 15 , 68 S.Ct. 367, 369 , 92 L.Ed. 436 . The goods ultimately seized were not in the process of destruction. Schmerber v. California, 384 U.S. 757, 770-771 , 86 S. Ct. 1826, 1835-1836 , 16 L.Ed.2d 908 ; United States v. Jeffers, supra; McDonald v. United States, supra, 335 U.S. at 455, 69 S.Ct. at 193. Nor were they about to be removed from the jurisdiction. Chapman v. United States, supra; Johnson v. United States, supra.”
Two factors of interest here were not present in the Vale case: (1) “The officers were not responding to an emergency.”; and, (2) “Nor were they [the drugs] about to be removed from the jurisdiction.” Both factors are present in the instant case, which should make it readily distinguishable from the Vale case.
I concur in the principal opinion.