Deputy Griffin entered the Chateau Ames apartment complex at 1521 Ames Boulevard. He knew from experience that there was a great deal of drug activity in the northern section of the complex, so he focused his attention on that area. When Deputy Griffin drove into the parking lot adjacent to the rear building, he saw a white Mercedes automobile parked with two black men sitting inside. A third man was standing beside the car, leaning into the open driver's side window. The deputy saw the driver and the third man engage in a hand-to-hand transaction. He believed that they were engaged in a narcotics sale and he decided to investigate. He called for backup officers over the police radio, exited his vehicle and approached the Mercedes. The man standing beside the car walked away quickly. The deputy shined his flashlight on the interior of the Mercedes and identified himself as a sheriff's deputy. He ordered the car's occupants to show him their hands. The car's driver, Davis, put the Mercedes in reverse and backed it toward Deputy Griffin. The Deputy drew his gun and retreated to his car. Davis continued to follow him. The deputy testified that he believed Davis was trying to run into him with the Mercedes. Deputies Kevin Bowser and Jason Barrette arrived at the scene and helped Deputy Griffin block the Mercedes from exiting the parking lot. The three deputies exited their car with guns drawn. They ordered the Defendant and Davis to get out of their car and lie on the ground. The two men complied. Deputy Barrette testified that the Defendant was the passenger in the car. The Defendant and Davis were handcuffed and turned over to Deputy Griffin. Deputy Barrette testified that when he walked past the open driver's side door of the Mercedes, he smelled the overwhelming odor of burned marijuana. He looked into the car and saw a clear plastic bag of green vegetable matter in plain view on the center console. Based on his law enforcement experience, Barrette believed the substance to be marijuana. Barrette retrieved the plastic bag. Deputy Griffin testified that both men were placed under arrest. At Deputy Griffin's request, K-9 officer Wade St. John brought a drug detecting dog to the scene to examine the car for additional narcotics. No other drugs were found. At trial, the parties stipulated to the crime lab report, which showed that an expert had tested the vegetable matter seized in this case, and found it to be positive for marijuana. The parties further stipulated to the Defendant's prior conviction for possession of marijuana. At trial Davis testified for the defense that he went to the Chateau Ames complex on the night of October 11, 2002 to ask his brother to go out with him. He was driving his white Mercedes. His brother was not at home, so Davis started to leave the complex. He encountered the Defendant, who asked him for a ride. The police officers pulled him over as he and the Defendant were leaving by way of the front driveway. Davis testified that he had bought marijuana that day from someone in Harvey and he was carrying the marijuana in his pocket. Davis said that the Defendant did not know he had marijuana. When the deputies stopped the men, Davis took the marijuana from his pocket and placed it on the console where they would see it. He testified that he placed the marijuana in plain view, because he did not want to reach into his pocket for it after the officers took him out of the car. Davis testified that he did not know why the officers pulled him over. He stated that he was not smoking marijuana in his car and that he had not smoked any marijuana that day. On crossexamination, however, he admitted to testifying at an earlier hearing that there was a strong odor of marijuana in his car. Davis testified that he had already pled guilty to possession of marijuana in connection with this case. The Defendant testified that he asked Davis, whom he knows as "Doo," for a ride home from Chateau Ames on the night in question. The Defendant did not want to drive his own car at night, because one of its taillights was not working. The two men were waiting in Davis' car for Davis' brother when the first officer approached. The officer ordered them out of the car. Doo said, "[M]an, I got a bag of weed." Doo then put the bag on the "counter." Doo told the Defendant, "my charge, my charge[.]" The Defendant testified that he was on parole for convictions associated with his former crack addiction. He said that he does not use drugs any longer and that his employer requires random drug testing. Tucker v. Commonwealth, 442 S.E.2d 419 (Va. Ct. App. 1994) At about 1:15 a.m. on March 31, 1992, Officer Alder stopped the vehicle in which appellant and his cousin, James W. Neal, Jr., were riding. Appellant and Neal consented to patdowns, and appellant, the driver of the vehicle, consented to a search of the car. No evidence of cocaine was found in the car. During the automobile search, Neal asked for and received permission to sit in one of the police cars, where Officer Shekleton joined him. Immediately after sitting down, Neal asked if he could get out to urinate. After Neal got out, Shekleton felt his car rock, and he observed Neal bent over and leaning against the right rear passenger portion of the car. Upon reentering the car, Neal "made a big production" about having to tie his shoe. After releasing the pair, the officers found a plastic baggie of cocaine three feet from the right rear passenger door of the police car. Officer Rothgeb testified that he had not searched the area prior to that time but asserted that "there wasn't anything in the road ... [because he] would have saw [sic] it when [he] pulled up." The officers also were unable to find a wet spot to indicate that Neal had urinated near the car. Rothgeb hid in the woods near the site and, fifteen minutes later, spotted appellant and Neal returning to the scene on foot. When a car approached, the pair said something inaudible and "hid in this [shaded] area away from the view of [the] road." After the car had passed, "[t]hey came out [and] looked around [to] see if anything else was coming," and they "walk[ed] up and down that side of the street" where the police car had been parked. In a loud voice, Rothgeb "[i]dentified [himself] as a police officer as [he] was walking out of the woods." Neal remained at the scene, but appellant fled. Neal refused to say why he had returned to the scene of the stop. Appellant testified that he had picked Neal up from a friend's house in Petersburg and that the two were returning home when they were stopped. After being released, appellant took Neal home and then proceeded to his own home. Both residences were within two blocks of the scene of the stop. After appellant arrived home, Neal telephoned to say that he had lost ten dollars out of thirty dollars that he had been carrying in his sock. After learning that appellant had not found it in his automobile, he asked appellant to drive him back to the scene of the stop to search for it. Still shaken from the experience, appellant refused to drive but agreed to accompany Neal back to the scene on foot. He denied hiding when a car passed and stated that he did not remember a car passing. He also testified that, due to the generally bad character of the neighborhood, he fled when he heard a noise in the woods and never heard Rothgeb identify himself as a police officer. Finally, appellant denied any knowledge that Neal was carrying drugs that evening or that he was involved with drugs in any way. Neal's testimony corroborated this fact. 1. Assume the Defendant in each case was charged with possession. Are these cases of actual possession or constructive possession? 2. What does the prosecution have to prove to convict the defendants of possession? 3. Identify the facts that support a conviction for possession in each case. Based on your analysis, do you believe both defendants can be convicted of possession?

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ANSWER ISSUE Are these cases of actual possession or constructive possession LEGAL PRINCIPLE LP Actu... View the full answer