Possession of Ephedrine or Pseudoephedrine in California

Possession of ephedrine or pseudoephedrine can be either actual or constructive. Constructive possession exists when the contraband is found in a place that is "immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862; see also People v. Jenkins (1979) 91 Cal. App. 3d 579, 583.) However, mere presence, or the opportunity to access a place where the contraband is found, without more, will not support a finding of unlawful possession. (People v. Redrick (1961) 55 Cal.2d 282, 285; People v. Estrada (1965) 234 Cal. App. 2d 136, 155.) Possession may be proved by circumstantial evidence and any inferences reasonably drawn from the evidence. (People v. Glass (1975) 44 Cal. App. 3d 772, 774; People v. Kanos (1971) 14 Cal. App. 3d 642, 652.) In People v. Jenkins (1979) 91 Cal. App. 3d 579, police discovered a phencyclidine (PCP) lab in the defendant's brother's garage. The defendant's palm, thumb, and fingerprints were found on a bottle, a flask, and a vial located inside the garage. (Jenkins, supra, at p. 582.) From such evidence, the court stated, the factfinder could infer that defendant was present in the garage when PCP was present. However, there was no evidence of the age of the fingerprints, no direct evidence of where the containers were when defendant touched them, no direct evidence of what was in the containers when he touched them, and no evidence that the contents of the containers were used in the manufacture of PCP. (Id. at p. 583.) The prints, the court concluded, did not show that defendant had dominion and control over the contraband, knowledge of the contraband, or intent to manufacture PCP. (Id. at p. 584.) In People v. Johnson (1984) 158 Cal. App. 3d 850, defendant was one of several people in the living room of a residence at a time when police searched the residence pursuant to a search warrant. (Johnson, supra, 158 Cal. App. 3d at p. 852.) There was no evidence that defendant was an owner, tenant, or resident of the house. (Id. at p. 854.) In the bathroom, police found a bottle containing 60 milliliters of PCP. In a hole in an overhang in the kitchen ceiling, hidden from view, the police found two other bottles containing PCP. A thumbprint matching defendant's thumb was lifted from one of these bottles. (Id. at pp. 852-853.) The Court of Appeal held that such evidence was insufficient to support a reasonable inference that defendant had dominion or control over the contraband. The fingerprint evidence, the court explained was speculative: "The container itself was not contraband. Rather, it was a completely legal item which, as the People's fingerprint expert himself testified, could have been empty or filled with a legitimate substance at the time defendant's print was placed on it. The fact defendant's thumbprint was intact on one part of the bottle did not show he was the last person to touch the bottle. As the fingerprint expert explained, it meant only that no one else had touched that 'exact same spot' on the bottle after defendant. Here, as in Jenkins, '(1) there was no evidence of the age of the fingerprint which was lifted from the container . . .; (2) there was no direct evidence where the container was when defendant touched it; and (3) there was no direct evidence of what was in the container when defendant touched it . . . .' " (Id. at pp. 855-856.)