In PANNELL v. U. S., decided on April 7, 2016, the Court of Appeals reversed a Possession of Control Substance (PCP) conviction and remanded for the conviction to be vacated as there was insufficient evidence to convict based on the theory of constructive possession.

Here, the undercover Officer had pulled over a vehicle with two front seat occupants. Two PCP cigarettes were found in the middle console closer to the passenger side seat than the driver. Assuming based on that proximity that the cigarettes belonged to Pannell, he was arrested and charged while the driver without being searched was given a traffic ticket for going through a stop-sign.

In order to prove constructive possession the government must show by clear and convincing evidence that the appellant knew that the PCP cigarettes were present in the car and that he had both the ability as well as the intent to exercise dominion or control over it. Constructive possession can be proven by direct or circumstantial evidence.

The appellant argued that there is no dispute that Pannell knew the cigarettes were there – however there is no evidence to suggest or hint in anyway that he intended to use them.

In another word, the appellant had the ability to exercise dominion/control over the PCP cigarettes, given his close proximity to the cigarettes. The legal issue on appeal was “whether a reasonable fact finder could have found, beyond a reasonable doubt, that appellant also had the intent to exercise control over the PCP-laced cigarettes.”

The Court of Appeals applying the existing comparative case which has addressed similar factual and legal issues held that:
“[a] passenger in someone else’s car, who is not the driver and who does not have exclusive control over the vehicle or its contents, may not be convicted solely on the basis that the drugs were in plain view and conveniently accessible in the passenger compartment.”

Some additional evidence is needed to legally connect the passenger to the drugs, a word, deed, gesture or relationship or other probative factors.

Something more can be comparatively minimal it “could be a furtive gesture indicating an attempt to access, hide or dispose of the object, flight or other evidence of consciousness of guilt, evidence of participation in an ongoing criminal venture involving the contraband, an inculpatory statement, evidence of prior possession of the item, actual possession of paraphernalia relating to the use or sale of the contraband, control of the area or container in which the contraband is found, or the like.”

The government argued that there was something more here to warrant constructive possession by the passenger.

The cigarettes were recently dipped in PCP solution. One of the cigarettes was bent and was closer to the passenger. The Court of Appeals did not find these arguments persuasive or additional evidence was needed to connect the passenger/appellant to the drugs.

Specifically the Court held: certainly the cigarette dipping, drying, and front-seat stashing — short of smoking — generates the vision of a criminal chemist at work, but what’s missing is evidence that appellant participated in that venture.

The Court further held that there is reasonable inference of a possibility, or even the probability that appellant did engage in a criminal activity but certainly not beyond a reasonable doubt.

The Law Offices of David Stein specializes in complex DC Criminal and family law litigation.

Refer to our Washington DC Criminal page: Washington DC Drug Lawyer for more information on the subject.