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Not Red Handed: When A Gun is Found 20 Yards From a Suspect in an Unlocked Shed.

The phrase “caught red handed” is often used in police dramas to describe a suspect in possession of a key piece of evidence that leads to a conviction. However, in many real criminal investigations the evidence of a crime is more nuanced and may depend upon circumstantial evidence to support a claim of constructive possession. For instance, in the recent case of Bradley v. State, 2018 Ark. App. 586 (Ark. App. 2018), the Circuit Court convicted a suspect of illegal possession of a firearm, despite the fact that the suspect did not have physical possession of the firearm at the time he was arrested. However, that conviction was subsequently reversed on appeal.

In Bradley, the defendant was convicted of being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103(c)(1)(A). Prior to Bradley’s conviction for that offense, the Circuit Court dismissed five separate charges related to Bradley’s alleged actions on the night he was arrested. All of the charges stemmed from an alleged domestic disturbance at a house in Little Rock. On the night of the alleged incident, the police responded to a 911 call and found various individuals in the house, including an older teenager. The suspect was arrested in the backyard, approximately 20 yards from a metal shed that was located next to the backdoor. About the time of the suspect’s arrest, one of the police officers located a loaded Glock semiautomatic pistol inside the metal shed. The suspect subsequently identified the Little Rock house as his address on a Miranda form.

In Arkansas, “[a] conviction for violating section 5-73-103(a)(1) may be based on actual or constructive possession. Bradley, 2018 Ark. App. at *7. “To constructively possess contraband means knowing it is present and having control over it.” Id. “Control and knowledge can be inferred from the circumstances . . .” Id. at 7-8 (finding it necessary that the item be “found in a place that is immediately and exclusively accessible to the accused . . .”). The Arkansas Court of Appeals determined that the Circuit Court had improperly applied the standard by accepting circumstantial evidence of constructive possession that “did not foreclose, beyond speculation and conjecture, every other reasonable hypothesis of [the defendant’s] guilt.” Id. at 9. The Circuit Court had previously concluded that the prosecution had met its burden of proof, “based upon proof that the Glock firearm located in the rear of the defendant’s residence . . . was located in an area from which the defendant was seen by police officers to have been fleeing or running. It was located in close proximity in time from the time that the defendant was being pursued. It was located in an open space, in an area near where defendant was apprehended.”

Evaluating the circumstantial evidence, the Arkansas Court of Appeals noted that: (1) the police officers admitted that multiple people had access to the house and the shed where the gun was found; (2) no witness had explained the defendant’s relationship to the people in the house; (3) the prosecution did not present evidence that the defendant had a property interest in the house, nor did it provide evidence that he paid utility bills for the house; (4) the prosecution did not link the defendant to the gun through fingerprint analysis, ownership records, or testimony regarding the defendant having a history of prior gun ownership/use; (5) there was no testimony regarding who used the storage shed, the purposes of that use, and the period of time it had been used;(6) the gun was located approximately 20 yards from the defendant, outside of the house, in an open box, in an unlocked shed; and (7) “the police officers did not recover any personal items that may have linked [the defendant] to the metal shed, the gun, or the house.” Id. at 9-12. Based upon these deficiencies, the Arkansas Court of Appeals held that there had not been “substantial evidence to support the conviction . . .” and reversed the conviction.

While it is possible to use constructive possession to prove a crime has occurred, it is difficult to accomplish. Whenever possible, it is better to catch the suspect “red handed.”


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