Constructive possession charge upheld

The Appeals court on January 11, 2010 in COMMONWEALTH vs. JEREMY M. FARNSWORTH 76 Mass. App. Ct. 87 upheld the conviction of Farnsworth on the charge of constructively possessing a controlled substance. The major issues decided in the case revolved around the concept of constructive possession and the voluntariness of the consent to search the house.
The court in reciting the facts of the case stated that “On March 16, 2006, Randy Girard, who was both a fire fighter with the Townsend fire department and a police detective with the Townsend police department, was working in his capacity as a fire fighter. At approximately 11:50 A.M., Girard was dispatched to a residence owned by the defendant’s mother, Maureen Farnsworth (Mrs. Farnsworth), *89 based on a report of smoke inside. [FN3] Girard drove to the fire station, equipped himself with his fire fighting gear, and went to the Farnsworth residence. When he arrived, Girard entered the front door and immediately smelled an “obvious burning smell.” He spoke to Lieutenant Grimley of the fire department, who instructed him to check the walls and ceilings to find the heat source. Girard and other fire fighters spread out through the house to do so.”
While inside the home, Girard found “a multicolored glass pipe on a night stand. [FN4] Through his training and experience as a police officer, Girard recognized the pipe to be consistent with pipes commonly used to smoke marijuana. He also recognized, through his training and experience, the appearance of burnt marijuana residue in the pipe. Girard made a “mental note” of the pipe, A shotgun, unprotected by a trigger lock, marijuana on a coffee table, a digital scale on the floor, an opened “home grow closet area” lined with aluminum foil and equipped with marijuana “growing lights,” flowerpots, fertilizer, and numerous bongs, which are used to smoke marijuana. He also detected an overwhelming odor of marijuana. Girard touched nothing and continued his job as a fire fighter. Unable to find the source for the burning odor on the top floor, Girard returned downstairs and learned that the source of the burning smell was an old television.”
After leaving the residence Girard took off his firefighting garb and approached two other police Officers advising them of the findings inside the home, the court then described their actions as “They presented Mrs. Farnsworth with a standard consent form, asked her to read it carefully, told her what they were searching for, and told her she did not have to sign the form. The form indicated that Girard was a detective and Johnson a sergeant employed by the Townsend police department. Girard also read the form to her, including the provision that permitted her to refuse consent, and explained that she could be criminally charged for the “various items that were found on the premises.” Despite being told about the marijuana and the improperly secured weapon, Mrs. Farnsworth said there was nothing illegal inside her house. She understood her rights, read the form in detail, and voluntarily signed it free of any threats or promises.
After obtaining Mrs. Farnsworth’s consent, Johnson, Matson, and Girard entered the house and went to the top floor, where they located and seized the unsecured shotgun.”
In deciding the case the court stated “a. Voluntariness of the consent. “When the police rely on *93 consent to justify a warrantless entry, under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], the prosecution ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’……Here, the evidence at the motion hearing properly supported the judge’s finding that Mrs. Farnsworth’s consent to the search of her home was given freely, voluntarily, and without coercion. b. Scope of the consent. The standard for measuring the scope of consent under the Fourth Amendment and art. 14 is that of objective reasonableness, i.e., what would a reasonable person have understood by the exchange between the officer and the individual providing consent? See Florida v. Jimeno, 500 U.S. 248, 251 (1991); Commonwealth v. Gaynor, 443 Mass. 245, 255 (2005). Whether the consent giver expressed or implied any limitation on the scope of that consent are questions “in the first instance for the judgment of the police officers to whom the consent is given. The ultimate question is whether, in light of all the circumstances, a man of reasonable caution would be warranted in the belief that some limitation was intended by the consent giver.” Commonwealth v. Hinds, 437 Mass. 54, 59 (2002), cert. denied, 537 U.S. 1205 (2003), quoting from Commonwealth v. Cantalupo, 380 Mass. 173, 178 (1980). See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 11-4 (2009-2010 ed.). Here, the defendant claims that even if his mother’s consent to search the home was valid, it did not extend to a search of his top-floor bedroom area. We disagree. As the judge found, Mrs. Farnsworth placed no limitation on her consent to search. She accompanied Girard throughout the house during the search, observed him as he searched in the various locations, and never expressed any limitation or reservation.
On the matter of Constructive possession of the items, the court stated “d. Remaining issues. The defendant claims that there was insufficient evidence to prove that he constructively possessed the drugs found in the top-floor loft area. To prove constructive possession, the Commonwealth must show “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). Present in the room were the defendant’s time card, writings to him, men’s clothing, men’s boots, and items consistent with the defendant’s age, such as video game controllers. It was also permissible for the fact finder to infer that the bedding in the loft area was masculine, and the room’s decor, which included posters with drug symbols and scantily-clad women, was most likely the selection of a teenaged male.
In contrast, the other two bedrooms in the house had female clothing in them. One such room was the master bedroom, most likely used by the defendant’s mother, and the other downstairs bedroom had a canopy bed, most likely used by the defendant’s sister. All of these facts taken together provided more than sufficient evidence to establish the defendant’s knowledge, ability, and intention to exercise dominion and control over the area *100 where the drugs were found. See Commonwealth v. Rarick, supra at 913. See also Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 504-506 (1998) (defendant had constructive possession of drugs found in bedroom in which his clothes and various forms of identification were present). The fact that the defendant was not present when the drugs were found does not diminish the reasonableness of that conclusion.
Commentary,
Both issues are good illustrations on proper consent, and the theory of constructive possession. Constructive possession is a broad based concept which is under utilized in my opinion in the Commonwealth. Its application could be far more reaching in many situations if applied correctly.

Attorney Ronald. A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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