Maybe Jackson Police Officer Christian McAlister had something personal going on; otherwise, it’s hard to explain what he found so suspicious about Markell Nolen and his 12-year-old daughter stopping at a Jackson gas station in October of 2021. Officer McAlister said he found almost everything about it suspicious. First, apparently the gas station was in a “high crime area.” Second, when Mr. Nolen went in the gas station, it took him five minutes to emerge with a drink. According to Officer McAlister, “five minutes is a long time to spend getting one object.” Then, when Mr. Nolen left the gas station, he left on a different street than the one he took to enter the parking lot, and, when he braked, Officer McAlister noticed a faulty brake light. Finally, when Mr. Nolen pulled over in response to Officer McAlister’s emergency equipment, Mr. Nolen opened the driver’s side door before he came to a complete stop. All of this was too much for Officer McAlister, who drew his weapon as he approached the car.
After admonishing Mr. Nolen for his suspicious behavior (he told Mr. Nolen “that’s how you get shot in Jackson!”) Officer McAlister determined that Mr. Nolen was driving his step-father’s car. He asked for permission to search the car, and, after an exhaustive search of the car, found a bag of illegal pills inside a shopping bag in the trunk among “a disorganized array of multiple objects.”
That fact, and nothing else, led to Mr. Nolen’s convictions for possession with intent to sell, possession with intent to deliver, and a ten-year sentence. Mr. Nolen denied knowledge of the drugs, and there was no follow up investigation of any kind — Officer McAlister did not try to determine whether Mr. Nolen was telling the truth, no one contacted the vehicle owner, no one checked the bag of drugs for fingerprints or anything else.
The Court of Criminal Appeals was not having it. First, the Court noted that the trial court only partially instructed the jury about constructive possession:
Our pattern jury instructions reflect our case law regarding the illegal possession of drugs:
There are two types of possession recognized in the law: actual possession and constructive possession. A person who knowingly has direct physical control over an object at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and intention at any given time to exercise dominion and control over an object, either directly or through others, is then in constructive possession of it. However, the mere presence of the defendant in an area where drugs are found is not sufficient, standing alone, to find constructive possession. Neither is the defendant’s mere association with a person in control of the drugs or the property where the drugs are located.
Weirdly, the trial court sua sponte omitted the last two sentences of the instruction.
The case did not ultimately turn on the jury instruction though. Instead, there was simply no proof that Mr. Nolen knowingly possessed the drugs, or, in the language of the jury instruction, that Mr. Nolen had the “power and intention to exercise dominion and control” over the drugs. In other words, there was no proof that Mr. Nolen knew the drugs were in the car.
The Court noted that other courts have used a non-exhaustive list of nine factors to help elucidate the totality of the circumstances, and, after examining numerous prior cases, found that the factors all weighed against the state. The opinion has a thorough compilation of constructive possession cases and serves as a powerful reminder that being in the car with drugs does not necessarily equal possession of those drugs. Congratulations to Appellate Director Brennan Wingerter for handling the appeal after Mr. Nolen attempted to proceed pro se following what must have been a less than satisfactory experience with his now-disbarred private trial lawyer.
(1) whether the drugs were in plain view and (2) whether contraband was in close proximity to the defendant. Courts have also considered numerous other factors, including (3) conduct on the part of the defendant indicative of guilt, including furtive gestures and flight; (4) the quantity of drugs present; (5) the proximity of the defendant’s effects to the contraband; (6) the presence of drug paraphernalia; (7) whether the defendant was under the influence of or possessed additional narcotics; (8) the defendant’s relationship to the premises; and (9) incriminating statements made by the defendant.