(D.C. Cir. 1980) (emphasis in original). This principle was reaffirmed this term in United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988).
This court recently has surveyed constructive possession cases, identifying the types of circumstantial evidence that, in conjunction with presence or proximity, are adequate to support the requisite jury conclusion "that in some discernible fashion the accused had a substantial voice vis-a-vis the drug." United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 884 (D.C. Cir. 1978). In United States v. Green, 652 F. Supp. 1312 (D.D.C. 1987), the court noted that verdicts based on constructive possession generally have been upheld when "the government introduced evidence of illegal narcotics or drug paraphernalia in plain view of both police and the occupants of the premises searched," or when there was "evidence that defendants acted in a manner consistent with knowledge or guilt." 652 F. Supp. at 1314-15 (citing cases), following United States v. Foster, 251 U.S. App. D.C. 272, 783 F.2d 1087, 1090-91 (D.C. Cir. 1986).
According to the government, the jury's verdict is permissible because the PCP was in "plain view" in the bathroom. It is undisputed that one bottle was wrapped inside two different bags, so this argument can only be thought to refer to the almond extract bottle beside the toilet in the bathroom. The difficulty with this argument is that there was nothing about this particular bottle that made its association with PCP, or with any sort of criminal behavior, apparent. This is decidedly unlike those cases in which narcotics in open view could be discerned as such, or in which packaging materials, firearms, or other paraphernalia of the narcotics trade would lead a reasonable individual on the premises to know that something was afoot. Standing alone, the presence of a small and inconspicuous bottle that presents no clue as to its contents and does not bear the defendant's fingerprints, will not support an inference that the defendant had knowledge of, and dominion over, those contents.
This conclusion is unaffected by the government's contention that the bottles gave off an aroma characteristic of PCP. First, the court notes that there was no basis on which the jury could conclude that the smell would be obvious to anyone present. More importantly, there was no testimony at all that the defendant, or any reasonable person in the defendant's position, would associate the smell with PCP, even if the smell pervaded the apartment. However "plain" this identification might be to a trained narcotics officer, there was no evidentiary basis for the jury to conclude that the smell would have any meaning to the uninitiated, or to this particular defendant.
Finally, the government argues that the jury verdict is adequately supported by the evidence, such as the pictures and the keys, which suggest the defendant regularly lived at the premises searched. The court recognizes that such evidence could have supported a jury inference of joint occupancy of the premises by Grayson and Wilson, particularly if the court accepts (as it must) the testimony that Grayson referred to the residence as "my house." But joint occupancy cannot support an inference of possession by itself. Even where joint occupancy is conceded, further evidence of dominion or control -- even if circumstantial -- must be adduced before a jury can conclude that a defendant knowingly possessed contraband. The cases reveal that constructive possession may only be inferred when control over the premises is accompanied by one of the two sorts of circumstantial evidence that we have identified. See Herron, 567 F.2d at 513; United States v. Davis, 183 U.S. App. D.C. 162, 562 F.2d 681, 684 (D.C. Cir. 1977).
The only evidence that could conceivably fit into the other category of circumstantial evidence the court has identified -- evidence consistent with knowledge or guilt -- would be the defendant's exclamation that "you cannot search my house without a warrant." There was no evidence that she had attempted to hide or destroy evidence, however, or that she interfered with the search once the warrant was presented. In such circumstances the court cannot equate the assertion of a legal right of this sort with evidence of guilt. The innocent as well as the guilty may insist that the police act lawfully.
For the reasons set forth above, the court grants the defendant's Motion for a Judgment of Acquittal because the jury could not reasonably have concluded, under the totality of the circumstances, that Grayson knowingly possessed the PCP referred to in Count III. An appropriate order accompanies this Memorandum.
ORDER - May 27, 1988, Filed
Defendant Paula Grayson has filed a Motion for a New Trial or Judgment of Acquittal, following her conviction by jury on one count (Count III) of unlawfully possessing phencyclidine (PCP) with intent to distribute. 18 U.S.C. §§ 841(a) & (b)(1)(B)(IV). For the reasons set forth in the accompanying Memorandum, and upon consideration of the entire record herein, it is by the court this 27th day of May, 1988
ORDERED that Grayson's motion for a Judgment of Acquittal is granted.