State v. Marsh
78 Or. App. 290, 716 P.2d 261, 1986 Ore. App. LEXIS 2582 (1986)
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Rule of Law:
Constructive possession of contraband exists when a defendant knows of the item's presence and has the right to control it, even if that right is not exclusive and is shared with others.
Facts:
- The vehicle in which defendant Cunningham was a passenger was owned by his mother.
- The mother had given permission to Patricia Peterson to drive the car but would not let Cunningham 'use' it due to his suspended license, though she approved of him riding with Peterson.
- On June 25, 1984, Deputy Sheriff Whisler stopped the vehicle while Peterson was driving and Cunningham was a passenger, as they were linked to recent credit card forgeries.
- During a subsequent search of the car's trunk, police observed a pistol with white grips inside a black purse with a broken zipper.
- Cunningham later testified at trial that he was aware the gun was in the purse in the trunk.
- Cunningham also testified that he had told Peterson, “We’ve got to get rid of that.”
- Peterson testified that the gun did not belong to Cunningham and that she had placed it in the purse.
Procedural Posture:
- Clatsop County Deputy Sheriff Whisler stopped the vehicle, arrested Cunningham and Peterson, and had the vehicle impounded.
- Police conducted an inventory of the impounded car and discovered a pistol in the trunk.
- A search warrant was subsequently obtained, and the pistol was seized.
- Cunningham was charged with the crime of ex-convict in possession of a firearm.
- Cunningham filed a motion to suppress the weapon, arguing the inventory search was unlawful.
- The trial court denied the motion to suppress, ruling the weapon would have been inevitably discovered.
- Following a trial to the court, Cunningham was convicted.
- The trial court denied Cunningham's motion for acquittal based on insufficient evidence of possession.
- The court sentenced Cunningham to five years of probation, to commence upon his release from prison for another offense.
- Cunningham appealed his conviction and sentence to the Court of Appeals of Oregon.
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Issue:
Is a defendant's admission that he knew a firearm was in the trunk of a car he was a passenger in, and his statement that they needed to 'get rid of it,' sufficient evidence to support a finding of constructive possession?
Opinions:
Majority - Warren, J.
Yes, a defendant's knowledge of a firearm's presence in a car, combined with a statement implying control, is sufficient evidence for constructive possession. Possession can be constructive as well as actual. To prove constructive possession, the state must show the defendant knowingly exercised control of or the right to control the contraband. Citing State v. Coria, the court emphasized that this right of control can be exercised jointly with others and does not need to be exclusive. Cunningham’s admitted knowledge that the gun was in the car and available for his use, coupled with his statement to Peterson about getting rid of it, was sufficient evidence for the court to conclude he was in constructive possession of the weapon.
Analysis:
This decision reinforces the legal principle of constructive possession, particularly in the context of shared spaces like vehicles. It clarifies that direct physical control is not necessary for a possession conviction; knowledge of the contraband's presence and a demonstrated right to control it are sufficient. The ruling lowers the evidentiary bar for prosecutors in cases where multiple individuals have access to contraband, establishing that a defendant's own statements implying control can be powerful evidence. This precedent makes it more difficult for passengers to disclaim possession of items found within a vehicle they occupy.
