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Watch where you hide that dope

In an opinion that should produce a bunch of smirks, the Oregon Court of Appeals ruled that a criminal defendant can be in constructive possession of drugs found inside his co-defendant's vagina. Before we start the inevitable "slippery slope" sort of arguments a case like this is destined to produce, let's look at the facts. In State v. Sherman, an opinion announced by the COA April 22, 2015, the court found that the trial court did not err in denying defendant's MJOA "based on its determination that a reasonable juror could conclude that he constructively possessed 5.67 grams of cocaine found in his codefendant's vagina." Sure.

Unfortunate Mr. Sherman was being surveilled by law enforcement for about a month as a suspected dope dealer. Just before the cops were about to serve the warrant, Mr. Sherman, co-defendant (and actual possessor of the bodily object at the, er, heart of this case), Ms. Dean and some other guy take off in a car. Pretext stop (or maybe attempt to elude) later, car is stopped, Sherman is arrested. While being arrested he allegedly told Ms. Dean to "keep her mouth shut" (reasonable advice) and that they had been "set up" (reasonable assumption).

Since they already had the warrant, the cops go back and search the house where they find all the stuff you would expect in a case like this:

33 bindles of packaged crack cocaine with a total weight of 5.65 grams in the pocket of a pair of men's pants. They also discovered personal papers belonging to defendant in a drawer near the pants. While in police custody, defendant admitted that he kept his clothes at the apartment. Officers also found materials used for manufacturing and packaging crack cocaine during the search.

Now for the uninitiated, for most drug possession/delivery charges in Oregon, a

person will get probation. However, if the state can prove the person possessed, delivered (read "dealt") or manufactured (somehow modified) more than what the legislature considers to be a "user amount" of a quantity of a controlled substance, the state can charge the person with a "substantial quantities" delivery, manufacturing or possession. This will turn a probation case into a prison case via the sentencing guidelines. For Mr. Sherman it was possessing, delivering and manufacturing more than 10 grams of cocaine.

So, you ask, if the cops only found 5.65 grams of cocaine via the crack found in the pants in the house, how do they get to the requisite 10 grams for substantial quantities? The answer lies in the contents of Ms. Dean's hoo-ha: 5.67 additional grams of cocaine, which is also the source of the best footnote in an appellate opinion this year thus far: "The record does not reveal the circumstances justifying the search of Dean's vagina."

Of course the issue is not how the narco-cops got into Ms. Dean's pants, the issue is how does Mr. Sherman have constructive possession of the contents of Ms. Dean's vagina? I doubt prior to being busted, Mr. Sherman would have asserted a privacy interest in Ms. Dean's intimate parts, but what if he had? Interesting thing about "constructive possession," which differs from "actual possession," which is what most people think of when they think of "possession;" i.e. do you hold the object? Is the object in your pockets? In your pants? Constructive possession is defined as having the right to control the object. So if Mr. Sherman essentially has the right to control the dope in Ms. Dean's vagina, can he then object to a search of said vagina? Slippery slope indeed. - Jon Sarre

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