By Don Murray, Partner, Shalley and Murray

 Imagine the following scnenario: 

  Jack is 17 years old.  He wants to go to the most important party ever in the history of teenager hysteria.  Jack's parents can't give him a ride and it looks like he won't be able to go, when he learns that Bill, a loose acquaintance from school is getting a ride from Dan, and 18 year old senior with his own car.  Jack doesn't really know Dan at all, but knows of his reputation as being a "burn-out" from school.  Jack gets into Dan's car into the back seat.  Dan is driving and Bill is in the front passenger seat.  Jack notices that the car smells like marijuana inside, but he doesn't say anything, confident in the knowledge that he doesn't do drugs and has nothing to do with Dan or what Dan chooses to do.

On the way to the party, Dan blows through a stop sign, alas, right in front of a police car.  The lights come on and the police pull Dan over.  When Officer Calahan leans into the driver window to ask Dan for his license, he immediately says, "It smells like pot in here fellas.  Why don't you all step out of the car."  All three teenagers get out of the car and stand by the trunk while Officer Calahan's partner watches them.  Meanwhile, Officer Calahan begins searching for the source of the marijuana smell. 

He finds it.  In the center console of the car are a bunch of bags of marijuana, as well as hundreds of vicodin and oxycotin pills, and a loaded handgun.

If asked to evaluate Jack's situation at this point, most teenagers will think that Jack doesn't have too much to worry about.  They will think that because it wasn't his car and he was just getting a ride that Jack has nothing to fear.  A few teenagers might even wonder whether Officer Calahan had the right to be snooping around the car in the first place, actually feeling like they are in a position to take an aggressive position with respect to Jack.  Teenagers will fixate on Jack's pure innocence in this scenario.  Perhaps, they will even think that Bill and Dan will speak up to let Officer Calahan "know" that Jack had nothing to do with it.  Certainly, Jack will tell Officer Calahan that he had nothing to do with the gun or drugs in the car.   

What could possibly go wrong? 

Dan, Bill, and Jack will be arrested.   Dan, Bill, and Jack will be charged with criminal possession of a weapon in the second degree (a class C violent felony with a 3 1/2 year mandatory minimum upon conviction) and criminal possession of a controlled substance with intent to sell (a class B drug felony).  They will also be charged with marijuana possession related to the amount of marijuana discovered.

This fact pattern makes teenagers crazy.  But how can Jack be arrested?  What if Dan says that Jack didn't know?  Why doesn't Jack just tell the police he didn't know? 

Jack will be arrested, without the slightest hesitation by the police in this situation, because of "The Automobile Presumption".  New York's automobile presumption is a principle in our law that in essence says that if you are in a car, and there is illegal stuff in the same car (wherever it may be hidden), then you are PRESUMED to be in knowing possession of the illegal stuff. 

I should mention at this point, however, that the automobile presumption does not technically mean that if you are in a car with illegal stuff, you are "automatically guilty".  This is America after all.  We famously presume everyone to be innocent.  So our Courts have made sure to limit this presumption so that it is something that jurors are told to consider, but that they are free not to apply it to any given case if they believe the circumstances don't justify it. 

BUT...that being said, behold the power of this presumption:

  1. The police can arrest you based on this presumption (if they find you in a car with hidden illegal stuff).
  2. The prosecutors can prosecute you based only on the presumption (meaning they don't need any additional evidence to pursue you in court). 
  3. At the conclusion of the trial, the judge will remind the jurors that if they find that facts trigger the presumption, they are allowed to convict based on the presumption. 
  4. The jury can convict solely based on the presumption if the jury believes it is justified. 

Of course the accused is allowed to defend the presumption by presenting any evidence suggestion that the application of the presumption is not justified in his case.  For example, suppose a person in a car can show that he had just been hitch hiking and was only picked up by the total strangers in the car moments before the car was stopped by the police.  That might be an excellent argument to convince the jury that the presumption of knowing possession of the gun was not justified simply because the defendant was in the back seat when the gun was recovered by the police. 

So now let's look at Jack's situation.

There are a couple of things in Jack's favor.  One is that it wasn't Jack's car.  Clearly the owner of a car is more likely to be aware of the contents of the center console than anyone else.  Since Jack wasn't the owner of the car, then, the presumption is weaker against him.  

Jack was also in the back seat.  It's harder to get at the center console of most cars from the back seat.  That suggests that Jack had less control over the items in the center console. 

There are some more nebulous things potentially in Jack's favor too.  For example, testimony could probably show that Jack was not a frequent companion to Bill or Dan, although that sort of negative testimony is difficult to present well.  How do you really prove that two people "don't hang out"?  At some level it is possible, but it is messy and probably would require multiple witnesses and forms of evidence. 

You won't find Jack's fingerprints or DNA on the gun or the drugs.  Fingerprints are actually difficult to pull off most guns, so the absence of Jack's fingerprints on the gun isn't really particularly compelling one way or another.  Fingerprints in general aren't that easy to get. 

Often of great interest to people in these sorts of situations are the statements of each of the occupants of the car.  What if, for example, Dan decides to take the honest way out and say, "The gun was mine and nobody else knew about it."?  It frustrates people to no end when I tell them that such statements frequently have little impact on the police or prosecutors.  If you realize that there are motivations to say such things that spring from other sources than a great desire to be truthful.  The government is frequently reluctant simply to take the word of someone the government is prosecuting for being a violent criminal and dismiss cases based on that word. 

Or what about Jack's inevitable statement to the police telling them that he had no idea about the gun and drugs and all he wanted was a ride to the party?  This is not likely to influence the police or prosecutor either because this is simply what one would expect your average guilty person to say.

The automobile presumption applies to all areas of the car, by the way, including the trunk and secret compartments within the car.  

Now all of this should not be taken to mean that Jack has no hope or that Jack's presence in the car will make him automatically guilty right away and he is doomed.  Properly defended, Jack might well have an excellent chance of a favorable result from the criminal justice system. 

But the problem is that that result may well come after Jack's parents have to spend considerable money on a private criminal defense lawyer, and it may well come after Jack (and his parents) endure months of seemingly endless court appearances on the march toward the trial.  The trial itself will be a nerve wracking event until the point of the verdict, when, it is hoped, that the jury returns the correct verdict and acquits Jack. 

The fact that Jack must endure this process is not some sort of fault of the criminal justice system.  You and I know that Jack is innocent because I told you that as part of the story up front.  In the real world, people don't walk around with labels of "guilty" or "innocent".  If I told you simply that three teenagers were in a car with a gun and a lot of drugs, your first reaction would probably not be to conclude that one or more them had no idea.  Your first reaction would probably be to imagine three tough looking thugs (however you imagine that to look).   

The police have no idea the relationships among the occupants of a car, and the circumstances of a car stop do not generally allow for detailed, Sherlock Holmes style analysis.  Decisions have to be made on the spot, and the automobile presumption makes those decisions real easy.  No police officer is likely to get in trouble for arresting everyone in a car where there is a gun and lots of drugs.  On the other hand, a police officer might think twice about justifying to his boss why he chose not to arrest one of the occupants of a car in which there is a gun and lots of drugs.  It is far simpler for the police to arrest everyone and let the Court sort out the facts.

Then, once there is an arrest, the same idea can drive the prosecution.  Few prosecutors are likely to get in trouble for taking a car full of teenagers to trial on a case in which a gun and lots of drugs are found in the car.  Yet it is easy to imagine a prosecutor getting grief for dismissing the case against one of the occupants because of a sneaking suspicion that the occupant may not have known about the illegal things recovered from the car.








While prosecutors do, from time to time, make discretionary decisions to cut occupants out of cases, it is not by any means common.  The odds are probably greater that the prosecution will simply take the position that the factual issue of the defendant's knowledge about the illegal items is one that is best and most properly decided by a jury. 

While this of course is a completely proper analysis, the import of taking this position of course, is that the defendant is required to go "all in" on a trial.  Success is wonderful, but failure means (in Jack's case, for example) a mandatory minimum of 3 1/2 years in prison.  Those are heavy stakes indeed.

Not in the thick of it, teenagers will often easily say that they would have no problem taking such a case to trial because they would be confident that their innocence would prevail.  I have represented quite a few teenagers in Jack's position, however, who, when push came to shove, did not find it so easy to believe that the truth would win out in the end. 

In truth, Jack (and Jack's parents) would have some extremely difficult decisions to make.  In the end, Jack, with the help of a skilled criminal defense lawyer, may well prevail in the end.  But it will be a long, difficult, worrisome road.

It would be far better for Jack never to have been involved in the situation to begin with. 

So what is Jack supposed to do?  Not go to the big party?  Maybe. 

There are some practical things that a teenager should remember.

The automobile presumption means that every time you get in someone's car you are betting that there isn't anything illegal in the car.  Of course it would be impractical and impolite to insist upon inspecting every car you enter, although if you ever end up being accused of a terrible crime because of the automobile presumption you will wish you had.  But that is never going to happen in the real world.

For Jack, maybe the smell of marijuana when he got in the car should have been the signal not to get in the car at all.   Teenagers need to pay attention to their associates.  I think teenagers, like the rest of us, generally have inner voices that give them a pretty good idea when they are with people they should be with and when they are not.

I think teenagers ignore this inner voice more readily than adults.  Perhaps if they knew just how easily they could be sucked into a nightmare in the criminal justice system, they would listen a little closer. 

Our schools do absolutely nothing to teach kids about the automobile presumption, even though every single one of them is held accountable for knowing it.

People love to say that ignorance of the law is no excuse.  If that is true, then there is no excuse for our children being as ignorant as they are.