257 So. 3d 1252
La.
2018
WEIMER, J., recused.

CRICHTON, J., would grant and assigns reasons.

GENOVESE, J., would grant and assigns reasons.

This case involves the concept of constructive possession of narcotics to support a conviction at trial. Here, the defendant was inarguably not in physical possession of the narcotics at issue; thus, the state had to prove that the defendant had constructive possession. That is, the state had to prove beyond a reasonable doubt that the defendant exercised "dominion and control" over the narcotics. See State v. Trahan , 425 So.2d 1222, 1226 (La. 1983). The fact that a defendant had physical presence in an area of the contraband is found does not prove he exercised "dominion and control" over that contraband. State v. Toups , 01-1875 (La. 10/15/02), 833 So.2d 910, 913. For the reasons assigned by Judge Holdridge in his dissent, I question whether the evidence in this case establishes constructive possession under these well-established standards, and I would grant the writ to examine whether the evidence was sufficient to support the conviction.1

would grant for the reasons assigned by Judge Holdridge and additionally avers: there was no evidence that defendant was in possession of any drugs, drug paraphernalia, any large sum of money, or any evidence associated with drug use or trafficking; there was no proof or connection between defendant and the cocaine found in the BBQ grill; the BBQ grill was not defendant's grill; the grill where the drugs were found was not seized as evidence, nor identified from any photograph at trial; defendant did not live on the property where the grill was located; and, there were no witnesses to this event. At best, this is a circumstantial evidence case. In circumstantial evidence cases, La.R.S. 15:438 requires the State to exclude every reasonable hypothesis of innocence. This, I find, the State failed to do.

Notes

This is not inconsistent with this Court's per curiam in State v. Moultrie , 15-2144 (La. 6/29/17), 224 So.3d 349. At that stage, the Court was examining the validity of a warrantless search, and found there was no reasonable expectation of privacy in the grill at issue. This writ is not concerned with the Fourth Amendment standards for a warrantless search, but rather with whether there was sufficient evidence to support defendant's conviction under Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standards for the analyses are entirely different.