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got a bad grade “planted” the marijuana in my briefcase when I wasn’t looking. Or, ‘maybe you put your roommate's Ecstasy in your pocket to take it to the police station and turn it in. Before we can understand and discuss the passive state of possession as actus reus, ‘we need to define two aspects of possession: (1) control of items and substances and (2) awareness of the control. ‘There are two kinds of possession: actual and constructive possession. Actual pos- session means I've got physical control of banned stuff; it’s “on me” (for example, mar- ‘ana is in my pocket). Constructive possession means I control banned stuff, but i's, not on me (it's in my car, my apartment, or other places I control) (American Law Institute 1985, 1:2, 24). As for the awareness aspect, possession can be either “knowing” or “mere.” Knowing possession means possessors are aware of what they possess. So if you buy crys- tal meth and know it’s crystal meth, you have knowing possession. (Knowing doesn’t mean you have to know it's a crime to possess crystal meth, only that you know it’s crystal meth.) Mere possession means you don't know what you possess. So if you agree to carry your friend's briefcase you don’t know is filled with stolen money, you've got mere possession of the money. Most states (except for North Dakota and Washington) require knowing possession. Also, almost all the cases in the court reports are constructive possession cases, and they're almost all drug and/or weapons cases. One of them is an illegal drug possession case, Miller u. State (1999). CASE | Did He Possess Marijuana and Cocaine? James Luther Miller, who was a passenger in a vehicle driven by Michael Alexander. Officer Land became suspi- cious of the vehicle because it approached him from the rear and would not pass his vehicle although he slowed to ‘Miller v. State 6 S.W3d 812 (Ark App. 1999) HISTORY James Luther Miller, the defendant-appellant, was con: victed by a jury of possession of cocaine and marijuana and sentenced to thitty years’ incarceration on the cocaine-possession conviction. He was sentenced to one year's imprisonment in the county jail on the marijuana- possession conviction, and ordered to pay a $1000 fine. Miller appealed. The Court of Appeals, Neal, J,, held that (1) evidence established that defendant constructively possessed marijuana found in vehicle, and (2) evidence did not establish that defendant constructively possessed cocaine found in vehicle. Affirmed part; reversed and dis- missed in part. NEAL, J. FACTS, At trial, Arkansas State Police Officer Tim Land testified that on February 23, 1997, he came into contact with thirty miles per hour. Land pulled his car into the median, and as the car passed he noticed that it did not have a license plate. He initiated a stop of the vehicle, and upon approaching the vehicle he smelled the very sttong odor of burned mari- juana emanating from the vehicle. Land had the driver exit the vehicle, and after noting the odor of burned marijuana and alcohol on his person, administered field sobriety tests, which Alexander failed. Land called for assistance, and Alexander was transported to the county jail for a breathalyzer. According to Land, there were four occu- pants in the vehicle: Alexander, who was the driver; James Giles, who was sitting in the right front seat; Damon Albert, who was sitting in the rear seat behind the driver, and James Miller (the appellant), who was seated on the right rear seat. ‘Trooper Land recovered three rolling papers from three of the vehicle's occupants, but could not recall which three occupants possessed the papers. He also stated that rosesion Q) 97 he found three rocks of crack cocaine and marijuana in the pouch located on the back of the driver's seat, directly in front of Damon Albert ‘The driver of the vehicle, Michael Alexander, testified that on the date in question he asked Miller if he wanted to ride to Hope, Arkansas, with him. He picked up Giles and Albert and took them to a residence in Hope, where they purchased crack cocaine. According to Alexander, Miller did not know that Giles and Albert were purchasing crack, and he did not know about the marijuana until it was smoked. However, Alexander later testified that all of the vehicle's occupants knew that the marijuana was in the vehicle because the marijuana was in the car before the group traveled to Hope. OPINION I is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Possession of drugs can be proved by constructive posses- sion, Constructive possession can be implied when the drugs are in the joint control of the accused and another. However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint posses- sion, There must be some additional factor linking the accused to the drugs. Other factors to be considered in ‘cases involving automobiles occupied by more than one person are: 1. whether the contraband is in plain view, 2. whether the contraband is found within the accused’s personal effects, 3. whether itis found on the same side of the car seat as the accused was sitting or in near proximity to it, 4, whether the accused is the owner of the automobile, cor exercised dominion and conttol over it; and 5. whether the accused acted suspiciously before or uring the arrest We believe the evidence is sufficient to conclude that the jury had substantial evidence from which it could find that appellant constructively possessed marijuana, By ‘way of analogy, we note that had the officer observed the ‘marijuana in plain view inside of the vehicle, the evidence ‘would be sufficient to compel the conclusion that Miller ‘constructively possessed the marijuana. Here, although the marijuana was not in plain view, we believe that the fact that the police officer smelled marijuana upon approaching the vehicle tends to establish that Miller had knowledge of the presence of the marijuana. It is the knowledge of the existence of the contraband that pro- ‘vides substantial evidence of constructive possession. Whether the evidence is sufficient to support the con- ‘vietion of possession of cocaine presents a more difficult question. In Bond v. State, 873 S.W.2d 569 (1994), we affirmed a conviction for possession of a controlled sub- stance under facts similar to, but distinguishable from ‘those present in the case at bar. In that case, appellants 8 © ‘were stopped by a police officer, who upon approaching the vehicle, smelled alcohol and marijuana. A search of the vehicle revealed a small brass pipe used to smoke mar- ijuana in plain view in the front seat in immediate prox imity to both appellants. The arresting officer observed that both appeared to have glassy eyes, In. affirming the conviction we utilized the following rationale: ‘There are factors in addition to the joint occu- pangy of the vehicle, from which the jury could find that appellants had joint control and dominion over the contraband, First. as to the small brass pipe, it was found in the front seat in immediate proximity to both appellants. Secondly, an additional factor, which links both appellants to the marijuana and from which constructive possession could be found, is that the mari- juana was in the back seat behind the driver's seat in an ‘area most easily accessible to Joseph the passenger, but also accessible to James, the driver. Icis the italicized portion of this court’s analysis that gives us great cause for concern. This language seems to mply that constructive possession may be proved by merely showing that the defendant was an occupant of a vehicle where illegal contraband is found, in the absence of any additional factor linking the accused to the contra- band. However, our case law makes it quite clear that the

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