Six police officers came to Defendant’s home to execute a warrant. While at Defendant’s home, the officers found marijuana in the master bedroom on Defendant’s husband’s side of the bed, and arrested Defendant.
To constitute possession of the controlled substance, the defendant must have some proprietary interest or an immediate right to control or reduce the controlled substance.
Six police officers executed a search warrant in an apartment shared by Defendant, Patricia Bash, her husband, Kevin, and her three sons. The search warrant stated that the officers were searching for controlled substances and a safety deposit box. The officer’s testimony and Defendant vary. The officer testifies that once the officer read the warrant, Defendant told the officer she could show him where the contents of the search was located. After, the officer testified that he followed Defendant into the master bedroom, where Defendant told him the â€œit’s on his nightstand in a cardboard box, that it’s Kevin’s stuff, that’s his bong . . . was sitting on the floor next to the bed.â€ The Defendant’s testimony, however, indicates that Defendant stated â€œ[i]f there is anything here, it would be on Kevin’s side of the bed.â€Â The officer found 1.37 grams of marijuana in the cardboard box. Defendant further testified that she did not know the marijuana was in the box until after the officer opened it. Nevertheless, she admitted that Kevin had previously left marijuana in the box. Defendant was found guilty of possession of marijuana. Defendant appeals on the grounds that the government failed to prove that the marijuana was in her control.
Whether the State failed to prove that Defendant had constructive possession over the marijuana found in her husband’s box.
Yes, the State failed to prove that Defendant had constructive possession over the marijuana because there was no evidence that Defendant had the right to control it or any proprietary interest in it.
To establish the Defendant’s right to maintain control of the marijuana or authority, the State relies on the fact that Defendant admitted that she could physically flush the marijuana down the toilet. The court finds this evidence to be insufficient based on State v. Atkison, where the court held that there has to be something more than the â€œraw physical abilityâ€ to exert control over the controlled substance. 620 N.W. 2d 1 (Iowa 2000).Â Here, Defendant needed to have some interest or right to control the marijuana in her possession. Therefore, because there is no such proof that Defendant had the requisite control or propriety interest, there is no evidence that Defendant shared ownership of the box or marijuana found inside, and the State failed to prove the Defendant had constructive possession of the marijuana.