Presumption, Presumption What’s Your Function?

Why High School and College Age kids Need to Know About The Automobile Presumption

Young people are frequently looking for and giving rides in cars to friends, friends of friends, and total strangers. It is part of being young and at various stages of being licensed and various levels of access to vehicles.  This reality of young life in combination with the recklessness and belief in their own immortality makes their general ignorance of the so called automobile presumption highly dangerous. 

The automobile presumption is the term to describe an important and powerful rule of law that is important in almost every criminal case where incriminating evidence is found inside a vehicle.

Most frequently, the automobile presumption is triggered when the police discover guns or drugs somewhere in a vehicle and then the Government charges one or more occupants of the vehicle with possession of the gun(s) or drugs.  

The automobile presumption says that if you are in a car, and if at the same time, there are guns or drugs in the car, you are “presumed” to be in possession of those guns or drugs.  

Some people who are vaguely aware of this rule mistakenly believe that the presumption is even more powerful than it actually is. They will say that they think the automobile presumption means that you are “automatically guilty”.  While the automobile presumption is extremely powerful, it isn’t that powerful. In the United States, there is no such thing as a mandatory presumption. Such a principle would conflict with the presumption of innocence, enshrined in our Constitution. That’s the good news. 

The bad news is that the automobile presumption, though it is “permissive” - meaning a jury is allowed to apply it, but not required to, is still a very powerful and dangerous weapon in the Government’s arsenal. 

Although of course an accused is allowed to raise a defense and make argument that a jury should not apply the presumption, at the conclusion of the case, after all the lawyers have made their arguments, and just before the jury retires to discuss the case, the judge will turn to the jury and read them the presumption. 

The judge will say it something like this:

What this means is that, if the People have proven beyond a reasonable doubt that the [illegal stuff] was present in an automobile…and that the defendant was occupying such automobile at the time such [illegal stuff] was found…then you may, but you are not required to, infer from those facts that the defendant possessed the [illegal stuff].

To the ears of defense lawyers, it is as if the Judge is telling the jury, "OK, despite everything the defense lawyer has said, just remember that if you find that the defendant was in the car and the [gun or drugs] were in the car, you are allowed to find him guilty if you feel like it, no questions asked."  

So it isn't mandatory, but it sure is tempting, isn't it?  Think about it from a jury's perspective for a moment.  Here they have been at a big complicated, super formal trial process with lawyers and someone accused of something no doubt pretty awful.  They are about to go try to come to a unanimous decision with 11 other strangers.  They are not thrilled about being jurors, and most of them would like this process to be concluded sooner rather than later so they can get back to school, work, and the business of living their lives.  

Just when they are about to get started, when everything seems more complicated than they imagined, when the defense lawyer's and prosecutor's arguments are still swimming in their heads, the Judge reads them more confusing stuff about the law. 

But then, just toward the end of it, the Judge reads them the rule above about the automobile presumption.  To jurors who might not be inclined to want to really take a deep dive into the case, the automobile presumption is music to their ears.  First, it is read to them by the Judge, who they perceive as the most trustworthy source of information in the Courtroom, especially as compared with the lawyers.  Second, it is pretty simple to apply the rule.  Defendant in the car?  Check.  Illegal stuff in the car?  Check.  Third, it offers them the safety of a law telling them it is perfectly reasonable to apply the presumption based only on those two facts. 

Applying the presumption is simple, and the application of it is preapproved as long as the two basic facts are there.  Game, set, match.  If they choose not to apply the presumption, things get messy and complicated and long, or they can be anyway.  Messy, complicated, and long, means hours and hours locked into a small room with 11 strangers.

This is the power of the automobile presumption.  In order to successfully defeat such a powerful and tempting rule of law, a defense lawyer must find a way to make the jurors care about the defendant enough to be willing to avoid taking the bait in the Judge's instruction, to avoid taking the fast, and simple way out.  


How Does the Automobile Presumption Operate in the World?

The automobile presumption operates in several circumstances where people are often surprised to learn of its application.  Most people grasp the idea that if a gun is sitting there on the back seat and there is a driver and a passenger, both the driver and the front seat passenger can, through application of the presumption, be arrested, prosecuted, and convicted through the use of the automobile presumption.  (Of course the passenger (or even the driver, really) could claim that it wasn't his car and that it wasn't his gun.  And maybe the jury chooses to apply the presumption to him, or maybe it doesn't.  Armed with the presumption the jury could convict the driver, the passenger, or both.)

But the automobile presumption is not limited to a particular location within the car or circumstance of recovery.  If the illegal stuff is located anywhere in the car, the automobile presumption applies.  This means that the fact that an illegal item is not generally visible, such as in a center console or glove compartment, the automobile presumption still applies.  This means that if the item is not only not obviously visible, but in a secret compartment, the automobile presumption still applies -- to everyone who happens to be in the car.  This means that if the item is in a secret compartment in the trunk of the car or in a secret compartment in the wheel well of the car, the automobile presumption still applies -- to everyone in the car.


But Why Does This Matter to High School and College Aged Kids?

Younger people seem to me to tend to get and give rides to larger numbers of people than we older folks.  They tend to accept rides from people they are less familiar with and they tend to give rides to people they are less familiar with.  They tend to believe in a "live and let live" sort of philosophy that causes them to act as if what others do is their own business and not theirs, so that if they suspect that a person deals drugs, they might not be worried about getting a  ride home from this person on the theory that "I don't deal drugs.  What do I have to fear?"

What they have to fear is the automobile presumption.  When the drug dealer acquaintance giving them a ride home is pulled over for a traffic infraction, and one thing leads to another, and a bunch of prescription pills are recovered from the center console of the car, guess who is going to be arrested for criminal possession of a controlled substance with intent to sell?

Your son or daughter who accepted a ride from a person he or she suspected of being a drug dealer will be arrested.  And based on what you now know of the automobile presumption, you know that just because your daughter or son was in the car and the drugs were in the car, that the Government already has enough facts to arrest your son or daughter, prosecute, bring to trial, and have the case submitted to a jury for consideration.  You also know that your son or daughter's fate hangs in the balance of whether a jury will care enough not to grab the judge's low hanging fruit of the offer to convict based on the automobile presumption as opposed to more carefully considering the possibility of your son or daughter's lack of connection to the illegal drugs.

You will be tempted to reach out to a criminal defense lawyer with the expectation that once the whole situation is explained, that of course the Government will simply dismiss the case against your child.  You will be tempted to inquire about the possibility of the true possessor of the illegal item coming forward to claim it, regardless of the consequences.  While it is certainly something that the Government can consider, you will learn that the Government is not bound to accept the noble statements of responsibility put forward by occupants of vehicles.  There are reasons, unrelated to the truth, that could motivate people to make such claims, such as threats, promises of payments, or assessments among the group of occupants of who can best "absorb" the conviction.  (For example, if one of the occupants has no criminal history and is under 19, that person may believe that a "youthful offender" settlement might be available to him or her that would not therefore involve a criminal conviction or possibly even jail.  By falling on the sword, this person, if the Government buys the claim of sole responsibility, can absorb the hit and thereby spare fellow occupants harsher penalties.)

Sometimes, the Government does ultimately consider the possibility that illegal items are the sole responsibility of one person out of a group of people in a car.  In such cases, the Government can be persuaded either to dismiss the case against the others outright, or perhaps offer some less serious, maybe even non-criminal offense to settle the matter.  But this will take time and it will involve the arrest, arraignment, and prosecution process.

How much better to avoid the vehicles of risky people?  More properly educated about the power of the automobile presumption, and the grave penalties associated with the gun and drug cases that so often develop from the automobile presumption, I believe fewer young people would find themselves being arrested and prosecuted essentially for lacking the wisdom to avoid getting in a car for a ride with someone of a risky or dangerous character.

By Don Murray, Esq. 

Don Murray is 27 year veteran New York City Criminal Lawyer, and founding partner of Shalley and Murray.  He has provided testimony in an international extradition matter as an expert in New York Criminal law, he has written a chapter for a multi-volume series of books for criminal defense lawyers, and he as consulted on various television and movie projects involving New York Criminal law.  Most recently he consulted on set for the NBC mini series, The Slap, where he was rewarded for his assistance by being allowed to appear briefly in the show (as an extra).  Mr. Murray has also lectured to a New York City private high school regarding the issues raised in this article.

Come back in the coming days for the follow up articles in this series.  Up next: "Search and Seizure - Suppression of Evidence - The Great Media Lie."