Commonwealth v. McDade PICS Case No. 14-0060 (C.P. Lawrence Dec. 31, 2013) Hodge, J. (13 pages).

COURTS OF COMMON PLEAS

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CRIMINAL LAW

Constructive Possession • Possession of a Controlled Substance • Sufficiency of Evidence • Habeas Corpus

Commonwealth v. McDade PICS Case No. 14-0060 (C.P. Lawrence Dec. 31, 2013) Hodge, J. (13 pages).

Defendant was stopped for a motor vehicle violation, and ultimately arrested for an outstanding Michigan warrant. Defendant's person was searched by the arresting officer prior to transport. Michigan authorities later declined to extradite, and defendant was released with a citation for the motor vehicle violation. After defendant was released, the transporting officer, upon searching the back seat of his cruiser, discovered a bag containing heroin, which the police assumed had come from defendant.

Subsequently, defendant was charged with possession of the heroin. Defendant filed a Petition for writ of habeas corpus, arguing that the commonwealth failed to present sufficient evidence to establish a prima facie case.

The court noted that in order for the commonwealth to establish a prima facie case for constructive possession - as there could be no actual possession since the heroin was not found on defendant's person - it must show, through direct or circumstantial evidence, that defendant had, at any point and for any length of time, the power to control the bag of heroin and the intent to exercise that control.

The court ruled that the commonwealth had presented insufficient evidence to establish that defendant had constructive possession of the heroin. The court noted that arresting officer had searched McDade's person prior to placing him in the transporting vehicle, and that the transporting officer did not inspect his cruiser prior to beginning his shift. The transporting officer responded to another unrelated incident after transporting McDade, and it was upon being asked to transport a second individual and searching the back seat prior to the transfer that the office discovered the heroin - the transporting officer had placed no other individuals other than McDade in the back seat.

Upon viewing the facts and circumstances in their totality, the court could not conclude that defendant had been in constructive possession of the heroin in question. Where the state cannot establish that a defendant had at any point the power to control contraband, and the intent to exercise said control, a charge of constructive possession cannot be sustained. Petition for habeas corpus granted.