Attorneys often cite My Cousin Vinny as a fun & surprisingly accurate depiction of the American criminal justice system. Herman Munster’s… I mean… Judge Haller’s courtroom is even used to teach lawyers how to lawyer. But, the real 1990s legal movie masterpiece is 1998’s Rush Hour. Let me explain:
Rush Hour is an action/comedy that fits within the buddy-cop/fish-out-of-water/odd-couple genres. The ever-flamboyant and talkative Chris Tucker is the comedic foil to Jackie Chan's reserved, methodical, and serious demeanor. In one of the film's most memorable scenes, the pair is walking to Chris Tucker's black 1972 Corvette Stingray convertible. Tucker gets into the driver's seat and Chan is the passenger. Chan tells Tucker that he talks too much and, as expected, this observation sends Tucker off on a tirade. To drown Tucker's rant out, Chan makes the mistake of turning on Tucker's radio..... prompting Tucker to memorably tell Chan not to ever touch another man’s radio! The audience laughs, Tucker dances, and Chan looks like he's ready to throw himself from the moving car. It's a great scene.... But what too easily gets lost in its mastery is how the scene perfectly personifies Florida's elements of constructive possession and displays why these cases are so hard for prosecutors to prove.
Let's say that Jackie Chan is charged with possessing that radio. What factors are relevant? Well, he occupied a car, with the radio in plain view that he clearly touched and used. Case closed. Guilty as charged, right?
Well, not exactly....
Elements of Constructive Possession
A legally sufficient case of constructive possession exists where one without physical possession of the item (1) knows of its illicit nature of the item, (2) know of its presence on or about his premises and (3) has the ability to maintain control over the item. Campbell v. State, 577 So. 2d 932, 935 (Fla. 1991), citing Brown v. State, 428 So.2d 250 (Fla.1983)
Still, the case against Chan seems strong. He (1) knew the nature of the item (i.e. he knew that the radio was a radio... that's why he turned it on.). (2) He knew of the radio's presence in the car, and (3) was able to reach out and touch the radio (i.e. maintain control over the item). But... it's not quite that simple.
Where premises are jointly occupied, evidence of mere occupancy is not enough to prove the elements of control and/or knowledge. Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). So maybe, Chan didn't really have dominion and control over the radio. After all, he doesn't own the radio or the car and the radio's owner did object to him touching it as soon as it was touched.... Even though he tried, Chan certainly wasn't able to "maintain" control over the item.
Also, Chan was merely a passenger in someone else's car. To prove that Chan had dominion and control over the radio, an involuntary or superficial possession will not suffice; circumstances must support the inference of a conscious and substantial possession. See Bennet v. State, 46 So. 3d 1181, 1184 (Fla. 2d DCA 2010). Temporary occupancy of an area where contraband (i.e. the radio) is in plain view is insufficient to establish the conscious and substantial possession required to prove constructive possession. See id. at 1184; see also Sundin v. State, 27 So. 3d 675 (Fla. 2d DCA 2009). So, being a passenger in a car also hurts the government's case against Chan... even though the radio was in "plain view."
Come on! He's inches away from the radio that he could plainly see! He had to have possessed it! Not so fast: mere proximity to contraband does not establish the dominion or control required for constructive possession. See Hill v. State, 736 So. 2d 133 (Fla. 1st DCA 1999). The court held that the location of the contraband, in Hill, coupled with the fact that the Hill could easily have exercised control over it, failed to prove anything more than mere proximity. See id. at 134.
That's exactly what we have with Chan. The radio's location was obvious. He could have easily exercised control over it. But those facts, by themselves, establish nothing more than proximity... which is not enough to convict Chan. Even if Chan was alone in the car, that might not have been enough (see e.g. Kuhn v. State, 439 So. 2d 291 (Fla. 3d 1983) (holding that a man, alone, in parked truck with "bales" of marijuana in the truck's bed was insufficient to establish the necessary control for constructive possession).
Let Him Walk!
Ultimately, given the scene in Rush Hour, the government could likely prove that Chan knew about the radio's presence because it was in plain view. They could probably also prove that he knew the radio was a radio, given how and why he attempted to use it. But, because of joint, temporary occupancy, coupled with the fact that he couldn't "maintain" control over it (i.e. he was immediately denied permission to use the radio when he tried to use it), Chan lacked the "dominion and control" over the radio.
Even though he was in a car with the radio in plain view, very near to him, and he had actually briefly used the radio at one point, it cannot be said that Jackie Chan ever "possessed" Chris Tucker's radio.