{"id":4418,"date":"2010-07-11T09:31:11","date_gmt":"2010-07-11T08:36:57","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-11T08:36:57","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4418","title":{"rendered":"OR: State’s argument for possession supports standing?"},"content":{"rendered":"

State’s argument that defendant had constructive possession of drugs in his girlfriend’s purse came really close to a virtual concession that he, then, would have standing to challenge the search of her purse because of his alleged control over it. The issue was purely possession based on his having possession of the drugs “just prior” to the search, but the court found it to be speculative. State v. Daniels<\/a>, No. S057832 (Ore. July 9, 2010):<\/p>\n

In the alternative, the state contends that defendant had constructive possession of the methamphetamine in Perdune’s bag. The concept of constructive possession broadens the scope of the crime of possession beyond physical control. State v. Casey<\/a>, 346 Or 54, 60, 203 P3d 202 (2009). In accordance with that concept, under ORS 161.015(9), “possess” means not only physical possession, but “otherwise exercis[ing] dominion or control over property.”<\/p>\n

The state contends that the jury could have found that defendant exercised dominion or control of the methamphetamine on September 21, 2006, because he shared control of it with Perdune. The state relies on the same circumstances outlined above: defendant was a drug dealer and user; defendant and Perdune were in a romantic relationship; and Perdune’s bag was located in defendant’s bedroom. Accordingly, the state contends that “it is likely that the drugs were available<\/em> for defendant’s use, and that he, therefore, constructively possessed them.” (Emphasis added.)\n<\/p><\/blockquote>\n

We reject the state’s argument for two reasons. First, proximity to property owned by a social guest does not establish that the host exercises dominion or control over that property. Second, the facts did not permit a reasonable inference that Perdune was more than defendant’s social guest. <\/p><\/blockquote>\n

Again, standing was not the issue here, but defense lawyers generally should watch for state arguments trying to show possession that can amount to virtual admissions of standing. (Few prosecutors read this website, so don’t worry about that.)<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4418","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4418","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4418"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4418\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4418"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4418"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4418"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}