Saturday, October 20, 2012

Tenth Circuit US v. Bagby 11-5050

Decision here.

   Tulsa police received a tip that Bagby was selling cocaine out of his house.  Plainclothes officers set up surveillance, and when they saw Bagby leave in a car they followed him.  Bagby committed a number of moving violations, so they called for a marked car to make a traffic stop.  That happened.

   While the traffic stop was going on, the plainclothes guys went bag to Bagby's house to do a knock and talk.  The owner of the house (who allowed Bagby to live there) allowed the officers inside and consented to a search of the house.  The officers searched, but they stayed out of Bagby's room because it was Bagby's room and he wasn't there to consent.  Meanwhile, the officers on the traffic stop somehow developed information that Bagby stored cocaine in the unattached garage (probably because Bagby didn't know when to STFU).  The plainclothes officers received consent to search the garage (and a key to the garage) from the homeowner, who told them that he doesn't go in there much.  They found cocaine base.

   The officer on the traffic stop was told to bring Bagby back to the house.  He did, and the cops read him Miranda (which he waived).  For the remainder of the investigation, Bagby said a lot of shit that he probably later regretted.  He tried to bribe the police (he told them if they just took the money and drugs and left, he wouldn't say anything), told them where in the house to find more money and drugs, and when one officer asked him about the food he steals from children's mouths by getting their parents hooked on cocaine (really, officer??), Bagby mentioned the food that he provides by selling cocaine.  He also bragged of his drug measuring prowess, and specifically admitted to ownership of the cocaine.

   After helping the police to build such a strong case against him, he took the case to trial for some reason (where he represented himself).  Go figure, he was convicted.  He appealed his conviction on several grounds, but the only one that's all that important here is that he argued the evidence presented was insufficient to support his conviction.

   The prosecution had relied on a constructive possession theory.  Constructive possession (as opposed to actual possession) means that someone exercises dominion or control over an item even though they may not be currently holding it.  Here's how the trial court summed it up in jury instructions:

A person who, although not in actual possession, knowingly has 
both the power and the intention at a given time to exercise dominion or 
control over an object, either directly or through another person or persons, 
is then in constructive possession of it.
More than one person can be in possession of an object if each 
knows of its presence and has the power and intention to control it.
A defendant has joint  possession of an object when two or more 
persons share actual or constructive possession of it.   However, merely
being present with others who have possession of the object does not 
constitute possession.
In this situation where the object is found in a place (such as a room 
or a car) occupied by more than one person, you may not infer control over 
the object based solely on joint occupancy.  Mere control over the place in 
which the object is found is not sufficient to establish constructive 
possession.   Instead, in this situation, the government must prove  some 
connection between the particular defendant and the object.

   So in this case, the government relied on such evidence as Bagby's admission that he owned the drugs to prove a connection between Bagby and the drugs.  Bagby's argument at trial was that it turned out the drugs were actually someone else's, and the police just never found the drugs which he had admitted to owning.  That argument went exactly as far as you would expect, and Bagby's conviction was affirmed.

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