January 27, 2008, 21:13
WacoEstablishing Possession
Is "access" enough to prove 'care, custody & control' in class B poss. marijuana and minor in possession of alcohol cases?
Officer lawfully in home to question 15 year old - mom invites officer in and takes him to kid's room where she knocks on the door. When kid opens the door, officer smells marijuana and sees bowl and several baggies of MJ with several pipes in plain view in the center of the room. 3 other guys age 18-21 are also in the room. All are arrested for possession.
Officers arrest basing PC on defendant's having access (i.e., Maryland v. Pringle). Is that sufficient for reasonable doubt in a home as well?
January 28, 2008, 09:46
suzannewestFrom CCA in 2002: 92 S.W.3d 531
"Possession need not be exclusive to the accused, but when more than one person exercises control over the contraband, some affirmative link must exist between the accused and the contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). Placing the accused in the vicinity of the contraband [**22] is not enough. Smith v. State, 737 S.W.2d 933, 941 (Tex. App. -- Dallas 1987, pet. ref'd). The affirmative link, consisting of additional facts and circumstances, must establish the essential possession elements of control and knowledge. Smith, 737 S.W.2d at 941. Several Court of Criminal Appeals decisions have listed factors relevant to the determination of whether an affirmative link exists. These include: whether the contraband was in open or plain view, Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987); whether the accused handled the contraband, see McGoldrick, 682 S.W.2d at 580; whether the appellant was in the place searched at the time of the search, see Martin, 753 S.W.2d at 387; whether the contraband was conveniently accessible to the accused, Guiton, 742 S.W.2d at 8; whether the accused owned or controlled the place where the contraband was found, Guiton, 742 S.W.2d at 8; and whether the accused made any incriminating statements at the time of the arrest, Martin, 753 S.W.2d at 387."
January 28, 2008, 09:50
JBWhat kind of mom doesn't know her own kid is smoking a bong in his bedroom? The smell alone would be a clue.
January 28, 2008, 10:48
rkThe same kind of mom who raises a kid that is being questioned by the police in, presumably, a different criminal matter.