When I was in college two of my friends were out behind the dorms smoking a bowl. A cop walked up, they tossed the bowl 10 or 20 feet away. Of course the cop saw it flying (though I’m not sure he saw who threw it). He went looking for it, found it, and asked who it belonged to. Neither of them fessed up, so he gave EACH of them a possession of paraphanalia ticket. I told them that they should go to court and fight it. It seemed to me that since he only collected one peice of evidence, he shouldn’t be able to claim that they were both in possesion of it, or could he, since presumably, they were passing it back and forth.
Let’s assume that he can prove that they were both using it (finger prints, DNA, whatever)
Let’s assume it’s a solid pipe, that can’t be separated into sections, so the cop can’t take it apart and claim they each had part of it or something odd like that.
What my question really comes down to is the title, can two people be cited of possesing one thing? Does it matter if he saw them passing it back and forth, so he saw them both posses it at one time? What about it he walked up to them and (not knowing what they were up to) and saw it fall out of one of their hands, though he couldn’t say who for sure.
It always seemed to me that he would have been better off ticketing one of them, and hoping that person didn’t fight it or if they did fight it, the judge didn’t drop it.
Sorry if this seems convaluted, 6 years this seemed like such a simple question to ask, until I put it in writing and came up with a bunch of what if’s.
Where do you get the idea that only one person can possess one thing? There are lots of contradictions of that in the law!
[li]Joint marital property[/li][li]joint and several tenancy[/li][li]business partnerships[/li][li]shared land or water use rights[/li][li]joint custody of children (though that’s not quite ‘ownership’)[/li][li]multiple stockholders owning a corporation[/li][/ul]
If the law recognizes that you and your wife can jointly own your house, surely they can say that the two of you jointly own a stash of pot hidden in that house!
Okay, so what about the other part of my question. Let’s say the cop never actually saw either one of them holding it. But it was clear when of them tossed it away. Could he write both of them a ticket, he KNOWS one of them had to possess it, he just doesn’t know which one it was.
Since he did in fact write them both a ticket, I don’t understand why you keep asking this question.
Right, because the “witness” isn’t talking. When they go fight it in court, what are they going to say? They’re going to say they didn’t possess it at any time, and perjure themselves? Is friend A going to get friend B to commit perjury and claim A never possessed it so that B not only gets the ticket, but risks getting into more trouble?
Even at that point, it depends on whether or not the judge believes it’s reasonable to think that A never used the bong.
Fine, I’ll rephrase, Is it legal to write two possession tickets for one item? He didn’t know who it belonged to, neither fessed, they both got tickets. I’m sorry if the word and the spirit of the question were slightly different, I should have phrased it better.
What you are implying is that no cop has ever done something he shouldn’t just because the other person (people) didn’t know better, right.
There was only one piece of paraphernalia, he knew one of them had it, he didn’t know which. Write them both a ticket and let the courts sort it out. It’s not the officer’s job to assign guilt or innocence.
It depends on how the law is written. Not just the individual statute making possession of the item illegal, but also the presumptions in the law. For example, the NYS Penal law has a section stating that the presence of a controlled substance in a automobile is presumptive evidence of possession by every person in that vehicle, with a few exceptions (for example, an occupant has the controlled substance concealed on his person). A similar presumption applies to the possession of a weapon. There are also presumption regarding weapons or drugs found in a room.
It doesn’t really matter who owns the item, although it is not uncommon for charges to be dropped against the non-owners when someone admits ownership. Your state may have a presumption regarding the possession of paraphernalia.
But going back to your OP
Let’s assume that he can prove that they were both using it (finger prints, DNA, whatever)
Let’s assume it’s a solid pipe, that can’t be separated into sections, so the cop can’t take it apart and claim they each had part of it or something odd like that.[/quote}
Presumptions aren’t even necessary if each individual’s possession can be proven. The fact that you were in possession of an object at 10:00 am doesn’t mean I can’t be in possession at 10:01 am.
Because some of us understand without help that “can” in this context means “can he do it legally”. For those others who need help the OP already explained:
Since you still don’t get the idea of the question you might want to sit back and just read what others who do understand the question might contribute. The snark is totally out of place.
That really does not answer the question does it? Whether the accused decides to commit perjury or not does not really answer the substance of the question in the least. I do not understand why you insist on posting so much snark and so little substance.
The question in the OP, (even if you think imperfectly asked), is “can two people be cited of possesing one thing?”. Obviously they can just as they can be shot but I interpret the question to mean “in the eyes of the law can two people be guilty of jointly and simultaneously having an object in their possession?”.
As has already been explained, property and possession are different things. If you lend me your car it is still your property but it is in my possession.
Now, we assume the law makes it illegal to be in the possession of drug paraphernalia. The question is can two people be in possession of a small object at the same time. Like any legal question lawyers can argue until they are rich but my non-lawyer first impression is that the answer is a definite “maybe not” and I believe it would be a good defense in court.
“Possession” of a small object to me implies having it in one’s hands or on one’s person. If I hand you my pen or my joint I believe I can quite truthfully and safely assert I am no longer in possession of it.
So I think it would be a good starting defense argument to assert both can not be in possession simultaneously.
The argument about perjuring themselves is totally erroneous in my view. They are not required to testify and, in any case, whether a person commits perjury is irrelevant to the question asked.
Once the judge has agreed only one person can be in “possession” of the object I think the rest pretty much is done. The DA would have to decide which one of the two to accuse and chances are the defense would have an easy case having the case dismissed at that point.
I would say it would be more likely that the DA at the very beginning would ask the cop for sufficient evidence to accuse one or the other or would not bother prosecuting.
Of course, if the evidence is strong enough (like fingerprints) to show they were both in possession of the object at some time they could both be charged of being in possession (not necessarily simultaneously).
But possession could be simultaneous. http://www.tjpc.state.tx.us/publications/reviews/05/05-2-15.htm is a case where the driver of a truck was held to be in joint possession of marijuana found on front passenger floorboard. I do not know the details of the case but it seems the court considered being the driver of the truck meant having enough control over the marijuana and so he had joint control with the passenger whose property it was. I believe if they would have been walking down the street this person would probably not have been accused or convicted but being the driver of the truck and knowing there were drugs in the truck made him be in “possession”.
Simultaneous possession by two or more people of a larger object I would say is possible. If my wife and I steal a car and both of us use it and have it parked outside our home I think it is safe to say we are both in possession of it.
Possession implies control. For a small object like a pen it would be necessary to establish who has it and controls it. If I live alone then anything in my apartment is presumed to be in my possession but if I live with room mates then it would have to be established by other means.
A car to which I have the keys and use and sits in my driveway is in my possession even if when the police arrive I am 100 miles away.
Wikipedia defines possession as “exclusive practical control of a thing, in the context of the legal implications of that control”.
I understood the spirit of the question perfectly. You need to read my entire answer and not pull the first sentence out of context. In most cases that I have ever heard of (and IANAL), the legality of what cops do is not black and white and must be tested in court based on the specific circumstances of the particular case. Regardless of what a lawyer will say based on case law and years of experience, every case is different and I don’t think you can ever say with 100% certainty what the outcome will be. (There are, of course, extreme cases, like cops beating a suspect during interrogation.)
I’m still going to hold that you missed the spirit of the question. Let’s pretend my question was "My friend was walking down the sidewalk and stepped on a crack, a police officer got out of his car put my friend in handcuffs, put a blindfold on him and shot him…with a bow and arrow, can he do that?.
In both cases I know he can (since he did), I guess I should have specified that I wanted to know if he can do it legally.
You do realize that when two people share a bong, even if they’re not in possession simultaneously, they do each possess the bong at some point in time, and the police can legitimately give them each a ticket for possession. If they could only cite the person who was “currently” in possession of it, then the cop could only give a ticket to the bush the guys threw the bong into. “I’m not in possession of the illegal drugs anymore, I gave them to that guy” isn’t actually a defense.
Sure, they’re not required to testify, but what sort of defense can you have when the only person in the world who was sitting there with you is not testifying on your behalf?
FWIW in California if you are in a car and get pulled over for an open alcoholic container cite, everyone in the car gets the same ticket. So one open beer can generate several citations. This is done to prevent the it wasn’t my beer defense.
Joint possession is possible as one alternative (like in the instance cited above where a truck driver was considered to be in joint possession with the actual user. I think a good defense lawyer would try to establish joint possession is not possible in this case. It would be the DA’s job to convince the judge that joint possession is possible and did indeed happen and provide the evidence to support that assertion. I doubt the cop’s word is enough for this.
Another alternative is that the DA claims successive possession took place. Again, this would have to be supported by evidence (fingerprints, etc). Absent this evidence the fact will not be accepted. Just the fact that the cop says the object was thrown by one of the two but he does not know which one is not sufficient evidence to establish this. More evidence is necessary.
You keep sidetracking the subject of the question trying to bring it to a totally different ground perhaps because you think you know more about this new ground. And I think you still know very little.
If two persons are jointly accused of a crime and it can only be that one of the committed the crime and the accusation cannot establish which one did it, then I am pretty sure the defense attorney would advise them to shut up and just let the DA hang himself because a DA saying “it was either him or him who did it” is just making a fool of himself (it would not happen in real life).
Basically it would be like this:
DA: I accuse X of having thrown the bowl which was therefore in his possession.
Defense: How can you prove it wasn’t Y who did it?
Judge: X you are free to go
DA: Ok, then I accuse Y of having thrown the bowl which was therefore in his possession.
Defense: How can you prove it wasn’t X who did it?