©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM)   In the Interest of J.S., A10A0654, 2010 Ga. App. LEXIS 399 (Decided April 16, 2010)

On December 23, 2008, a police officer in Georgia observed a car parked at an open convenience store at the end of the parking lot.  As the officer observed the vehicle, which was occupied by a driver and a back seat passenger, J.S., a juvenile, drove up in another vehicle and parked near the first car.  J.S. then climbed in the passenger side of the first car.  The officer could not see anything in J.S.’s hand.  The officer then drove up and parked behind the first car.  He observed that J.S. glanced back at him, and then moved his hands around the center console area.  The officer perceived that he was hiding something in the console.

The officer then made contact with the driver of the first car and J.S.  The driver said he was going to shop at the store.  J.S. said that he lived in a different county and came to collect money from friend, but upon seeing the driver of the first car, who was a previous acquaintance, stopped to speak with him.

The officer asked for and received consent to search the car from the driver.  The officer found a bag of cocaine in the center console, within reach of the driver, J.S. and the back seat passenger.  The officer testified that he did not see J.S. in physical possession of the cocaine, and J.S. had been in the car only two or three minutes.  J.S. denied knowledge of the cocaine and did not possess any other drugs or illegal items.

J.S. was charged with possession of the cocaine.  In court, J.S. testified that he had driven 30 or 40 minutes from home to collect $50 dollars from a friend.  When he saw the driver of the first car, an acquaintance, he stopped to say hello.  J.S. further testified that he did not open the center console.  A friend who was with him corroborated his story.

The juvenile court adjudicated J.S. as delinquent holding that, based on circumstantial evidence, he was in constructive possession of the cocaine.  He appealed and argued that the circumstantial evidence was not sufficient to support his conviction.

The Court of Appeals of Georgia first examined two rules applicable to this case.

First, for construction possession to be shown, there must exist proof that

the defendant had both the power and the intention at a given time to exercise dominion or control over [the cocaine].  A finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity.i

Second, there is a rule regarding the sufficiency of evidence where a conviction is to be based solely on circumstantial evidence.  The court stated

Where, as here, the state’s constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save the guilt of the accused.ii

J.S. argues that he provided a plausible explanation of his presence in the car, and this was a reasonable alternate hypothesis that explains his presence in the first car.  The court noted that J.S.’s constructive possession of the cocaine was a reasonable hypothesis; however, so was his explanation as to his presence in the car.  The court stated

When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.iii

The court then held that having J.S.’s hands in the area of the center console next to where he was seated, and the fact that did not live near the parking lot were the arrest took place did not exclude every other reasonable hypothesisof except his guilt; therefore, the evidence was not sufficient to show that J.S. was in constructive possession of the cocaine.

NOTE:    Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.


Proving Constructive Possession of Illegal Drugs (2008)

Cocain Discovered in Auto Leads to Probable Cause to Arrest All Occupants (2007)

Warrantless Searches of Motor Vehicles (2006)

Consent Searches of Motor Vehicles (2006)

Permission to search during stop & Robinette decision (Legal Question 2007)

Vehicle Search Consent (Legal Question 2007)

Street Crime Police Units:  Traffic Stops, High Crime Areas, Furtive Movements and Vehicle Searches (2009) 

Automobile search based only on smell of marijuana (Legal Question 2008)


i In the Interest of J.S., A10A0654, 2010 Ga. App. LEXIS 399 (Decided April 16, 2010)

ii Id. at 4

iii Id. at 6

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