United States District Court, S.D. Mississippi, Northern Division
DANIEL P. JORDAN, III, District Judge.
This criminal matter is before the Court to consider revoking Defendant Roddrick Bourne's supervised release. An evidentiary hearing was held March 28, 2014. At its end, the Government requested and was granted permission to file a post-hearing brief, which it then declined to file until asked to do so by the Court. The Government thereafter filed a Motion to Revoke , and Bourne filed a response . Having heard the evidence and read the briefs, the Court finds that the Government's motion should be denied, Bourne should be released from custody, and he shall remain on supervised release.
I. Findings of Fact
Bourne pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 49 months imprisonment with three years of supervised release, which began January 26, 2012. The first two years of that period passed without incident as Bourne remained gainfully employed. But on January 16, 2014, he was found near a gun and was arrested by the Jackson Police Department for being a felon in the possession of a firearm.
On that day, Bourne visited a cousin's apartment to use the bathroom and then sat on an L-shaped couch. Another individual, Anthony Brown, was lying on the couch-as was the disputed firearm. Shortly after Bourne took his seat, the Jackson Police Department entered to serve a warrant for suspected drugs. One of those officers, Detective Roy Dickerson, saw Bourne and Brown on the couch and also saw the firearm partially under a pillow. Based on Dickerson's testimony, it seems reasonable to conclude that Brown was resting his head on the pillow under which the gun was found. Even if he was not, the Court credits Detective Dickerson's testimony that the gun was "almost directly underneath" Brown's head. The Court further credits Dickerson's testimony that Bourne admitted seeing the gun when he arrived and that Bourne could have reached for it though he was not sitting right next to Brown on the couch.
A court may revoke a term of supervised release if it "finds by a preponderance of the evidence that a defendant has violated a condition of supervised release." United States v. Hampton, 633 F.3d 334, 337 (5th Cir. 2011). One of the conditions of Bourne's supervised release is that he not violate state or federal law, both of which preclude him from possessing a firearm.
A. State Law
The Government contends that Bourne possessed the firearm. But because there is no credible proof that he was in actual possession, it argues that he constructively possessed the weapon found in the apartment. As explained by the Mississippi Supreme Court in Curry v. State, to establish constructive possession
there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the [contraband] involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
249 So.2d 414, 416 (Miss. 1971); see also Johnson v. State, 81 So.3d 1020, 1023 (Miss. 2011).
As noted, physical proximity is not alone sufficient. Indeed, the Mississippi Supreme Court has frequently reversed convictions where the state failed to establish more than mere proximity. See, e.g., Johnson, 81 So.3d at 1023; Hudson v. State, 30 So.3d 1199, 1204 (Miss. 2010); Dixon v. State, 953 So.2d 1108, 1112-13 (Miss. 2007) (reversing conviction and holding that physical proximity is not enough; "there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband...." (quotation marks, emphasis, and citation omitted)); Naylor v. State, 730 So.2d 561, 566 (Miss. 1998); Jones v. State, 693 So.2d 375, 377 (Miss. 1997).
The Mississippi Supreme Court's holding in Martin v. State is particularly relevant. 804 So.2d 967 (Miss. 2001). There, the defendant was found standing over a Tupperware bowl full of marijuana and confessed that he knew the drugs were present when he visited the house. The court nevertheless reversed the constructive-possession conviction because the state proved proximity but not dominion or control. Id. at 970 (holding that "Martin's mere presence in the kitchen area where the marijuana was found, without more, is simply not enough").
So the question is whether Bourne exercised dominion or control over the gun. Dominion is defined as "absolute ownership." "Dominion, " Webster's Third International Dictionary 672 (1981). And to control is "to exercise restraining or directing influence over." "Control, " Webster's Third International Dictionary 496 (1981). Given that the gun was almost directly under Brown's head under his pillow, Bourne did not have absolute ownership of the weapon or ...