Man’s Constructive Possession of the Contents of a Woman’s Purse

May a man be held criminally responsible for the contents of his girlfriend’s purse? Yes, on the facts of State v. Mitchell, the court of appeals ruled yesterday.

In Mitchell, an officer stopped the defendant for speeding. The officer ordered the defendant and his girlfriend out of the car. Subsequent events, not highly relevant here, gave the officer probable cause to search the vehicle for drugs. The defendant then stated that there was a gun in the glove compartment. Indeed, the officer found a handgun in a purse in the glove compartment, and also found marijuana in the trunk. Another officer obtained consent to search the defendant’s person and found a scale and over $2,000 in cash.

The defendant was charged with, inter alia, possession of a firearm by a felon, and he was convicted. On appeal, he contended that his trial lawyer should have moved to dismiss the felon in possession charge. The court of appeals ruled that such a motion would have been fruitless because there was sufficient evidence that the defendant constructively possessed the gun.

The court based its ruling on the premise that the driver of a vehicle “has the power to control the contents of the car.” State v. Best, __ N.C. App. __, 713 S.E.2d 556 (2011). The court noted that the defendant was aware of the gun’s presence, given that he advised the officer about it. And the court observed that there was no evidence that the gun was registered to the girlfriend, notwithstanding her testimony at trial that the gun was hers. The court therefore distinguished State v. Alston, 131 N.C. App. 514 (1998) (insufficient evidence of constructive possession where a gun, registered to the defendant’s wife, was found on the center console of a vehicle; the defendant was the front-seat passenger and his wife was the driver).

Obviously, there are times when a man should be held responsible for the contents of a woman’s purse, like when the man instructs the woman to hide his contraband in the purse. See, e.g., United States v. Mokol, 646 F.3d 479 (7th Cir. 2011) (“[T]he Government’s case included evidence that would support a conclusion that [the defendant] was a felon in possession through constructive possession [based on] the handgun [his girlfriend] testified to carrying in her purse at [the defendant’s] behest.”); State v. Jones, 45 P.3d 1062 (Wash. 2002) (“[The defendant] had constructive possession of the purse because he exercised control over his car and the contents therein, he stored items in the purse, and he admitted that the gun in the purse belonged to him.”).

On the other hand, if a man isn’t aware of the contents of a woman’s purse, he clearly isn’t responsible for the contents. See, e.g., State v. Daniels, 234 P.3d 976 (Or. 2010) (insufficient evidence that the defendant constructively possessed drugs in girlfriend’s bag, even though the bag was in his bedroom, where there was no evidence that he knew what we in the bag); United States v. Houston, 364 F.3d 243 (5th Cir. 2004) (insufficient evidence that the defendant constructively possessed a pistol in his wife’s purse where “[t]he gun was not in plain view, and [the wife, not the defendant] disclosed the location of the gun [to police]”).

Mitchell is interesting because it is between the two extremes. The defendant was clearly aware of the gun. But the state presented no direct evidence that the gun actually belonged to the defendant and was merely stored in the purse at his request. Of course, human experience suggests that the latter scenario is entirely possible, and the rather hard line taken by the court of appeals on the constructive possession issue may reflect the judges’ natural skepticism about the true ownership of the gun.