State of Minnesota, Respondent, vs. Jessie Richard Ahrendt, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1997

 

State of Minnesota,

Respondent,

 

vs.

 

Jessie Richard Ahrendt,

Appellant.

 

Filed November 10, 2003

Affirmed

Hudson, Judge Randall, Judge, concurring specially

 

Todd County District Court

File No. K6-00-760

 

 

Mike Hatch, Attorney General, David S. Voigt, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55102; and

 

Gaylord Saetre, Todd County Attorney, Todd County Courthouse, 212 Second Avenue South, Long Prairie, Minnesota  56347  (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

HUDSON, Judge

Appellant challenges his conviction and sentence of fifth-degree controlled-substance crime and felon in possession of a firearm.  Appellant argues that (1) the search warrant application lacked probable cause; (2) the evidence is insufficient to support his conviction; and (3) the evidence is insufficient to support the district court's finding that appellant was in possession of a firearm at the time of the offense.  We affirm.

FACTS

            Appellant, Jesse Ahrendt, and his friend, Christian Rabenhorst (Rabenhorst), rented a farmhouse in Leslie Township outside of Long Prairie, Minnesota.  Samuel Hohman (Hohman) stayed temporarily with appellant and Rabenhorst at the Leslie Township residence.  Ahrendt and Rabenhorst each had a bedroom located on the second floor.  Hohman slept on a couch downstairs in the living room. 

On October 18, 2000, Deputy Hied of the Todd County Sheriff's Department made a traffic stop near Long Prairie.  The vehicle's occupants, including Richard Leon Reece-Jarman (Reece-Jarman), Brian Paul Shook (Shook), and Rodney Joseph Hill (Hill), told Deputy Hied that they were looking for a residence west of Long Prairie but were unable to find it.  Early the next morning, Reece-Jarman, Shook, and Hill were stopped again, this time in Becker County.  Officers searched the car and recovered three ounces of marijuana from the vehicle.  Reece-Jarman told the officers that they met the seller at the Long Prairie Burger King restaurant and bought the marijuana there because they were unable to locate the seller's residence, which they believed was west of Long Prairie.  He also stated that Hohman arranged the transaction.  In addition, the officers were aware that Hohman had previously been arrested in Wadena for possession of approximately one pound of marijuana and that he was temporarily staying with Ahrendt and Rabenhorst.  Based on the information obtained from Reece-Jarman, the officers believed the residence Reece-Jarman was looking for was located in Leslie Township. 

On October 24, 2000, Deputy Burns of the Todd County Sheriff's Department spoke with a confidential reliable informant (the informant).  The informant reported that he had seen "over a felony amount of marijuana that appeared to be packaged for sale" at the Leslie Township residence that Ahrendt was renting.  The informant also stated that he observed methamphetamine packaged for sale, a  .22 caliber rifle, and a shotgun inside the residence.  The informant could not provide the names of the individuals who lived there, but described one of them to be over six feet tall.  The informant also described the location of the residence and the two types of vehicles that were parked there.  The informant had made numerous controlled purchases of controlled substances for the West Central Minnesota Drug Task Force (Drug Task Force).  Further, the informant previously provided information to Deputy Burns that led to the arrest of persons for marijuana possession with intent to distribute. 

Deputy Burns verified the directions, the description of the residence, and the description of two of the vehicles that the informant said were parked at the Leslie Township residence.  Officers spoke to the landlord of the residence who identified Ahrendt and a person named Chris as tenants.  The Todd County Sheriff's Department records indicated that Ahrendt is six feet, three inches tall.  Based on this information, Deputy Burns applied for and received a search warrant to search Ahrendt's house. 

            On October 26, 2000, law enforcement officers from the Drug Task Force searched Ahrendt's residence.  Rabenhorst and Hohman were both inside the home when the warrant was executed, but Ahrendt was at work during the search.  During the search, officers found bills and a letter addressed to Ahrendt as well as a Sprint phone card in Ahrendt's name all located in the dining room.  Officers found methamphetamine in two different locations in the living room.  The officers also found marijuana in a small plastic sandwich bag and paraphernalia for smoking marijuana located in the same drawer as the methamphetamine.  The marijuana in the drawer weighed 4.6 grams.  On the furnace in the living room, the officers found a small amount of marijuana in a road atlas.  Also in the living room, officers found a wooden box containing scales and other items of paraphernalia, which appeared to be used for smoking marijuana. 

            Officers also found marijuana in a green duffel bag in the basement of the house.  The marijuana inside the duffel bag was packaged in three separate plastic bags and one of the plastic bags contained five smaller plastic bags, each containing one ounce of marijuana.  One plastic bag weighed 28.3 grams, another weighed 92.8 grams, and the other weighed 138 grams.  Officers found two plastic bags of marijuana, a scale and drug paraphernalia in Rabenhorst's bedroom.  The marijuana in Rabenhorst's bedroom weighed 31.2 grams. 

            Additionally, officers stated that they found a loaded .22 caliber rifle in the kitchen near the door and a loaded 12-gauge Mossberg shotgun placed against the wall in Ahrendt's bedroom.  Deputy Burns described the shotgun as having no hunting or sporting purpose.  Ammunition was recovered from the .22 caliber rifle but not the shotgun.  Officers also found $4,000 in cash under Ahrendt's mattress. 

            After the search was conducted, Ahrendt was arrested at his work place.  The Todd County police found what appeared to be a marijuana pipe in Ahrendt's pocket.  Officers also searched Ahrendt's car and found a "dugout," which is a device used for smoking marijuana.  In the back seat of Ahrendt's car, officers found a small black calendar book, which appeared to contain "drug ledgers."[1]  Ahrendt was subsequently charged with one count of first-degree possession of methamphetamine and one count of fifth-degree possession of marijuana.  The state later amended the complaint, adding one count of first-degree sale of methamphetamine and adding to each count that Ahrendt or an accomplice possessed a firearm at the time of the offense.  Prior to trial, Ahrendt moved to suppress the evidence seized from his residence.  The district court denied the motion and the case went to the jury.

            During the trial, Hohman[2] testified that the drugs recovered from the house belonged to Ahrendt and Rabenhorst.  He identified the book found in Ahrendt's car as the one he saw Ahrendt and Rabenhorst using to keep track of their drug sales.  Hohman also identified the duffel bag containing marijuana as the same bag Ahrendt and Rabenhorst used to carry their drugs.  He testified that he had seen Ahrendt with the duffel bag on several different occasions.  Hohman further testified that he saw Ahrendt possessing and smoking marijuana on several different occasions. 

            In contrast, Rabenhorst and his mother both testified that the duffel bag belonged to Rabenhorst.  Rabenhorst claimed that all of the drugs found in the house were his and that Ahrendt had no knowledge of them.  He testified that he stored the marijuana in the duffel bag in the basement, that it was packaged for sale, and no one else knew where it was or had access to it.  Rabenhorst also claimed that he owned the book recovered from Ahrendt's car.  Further, he stated that Ahrendt owned the .22 caliber rifle and the shotgun.  Rabenhorst stated that Ahrendt used the rifle for hunting squirrels and used both guns for hunting. 

            Following the trial, Ahrendt was convicted of one count of fifth-degree possession of marijuana and acquitted of the other two counts.  At sentencing, Ahrendt requested a dispositional departure.  The district court denied Ahrendt's motion and imposed the mandatory sentence of 36 months' imprisonment based on Ahrendt's possession of a firearm.  This appeal follows.

DECISION I

 

Ahrendt argues that the district court should have suppressed evidence seized from the police search of his residence because the search warrant application lacked probable cause.  We disagree.  We review the district court's determination of probable cause to issue a search warrant to ensure that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  Substantial basis in this context means a "fair probability," given the totality of the circumstances, "that contraband or evidence of a crime will be found in a particular place."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (quotation omitted).  Great deference is given to the issuing judge's determination of probable cause, and this court should not subject that determination to a rigorous de novo review.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).

A.  Veracity and Basis of Knowledge

            Ahrendt first argues that the search warrant application did not establish the "veracity" and "basis of knowledge" of the confidential informant.  The existence of probable cause based on an informant's tip is determined by a "totality of the circumstances" test:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

 

Wiley, 366 N.W.2d at 268 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  In assessing an informant's veracity and basis of knowledge, "[a]ll of the facts relating to the informant should be considered in weighing reliability."  State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998).

                        1)  Veracity

Ahrendt contends that the search warrant application does not contain information to substantiate the informant's reliability or credibility.  All facts relating to the confidential informant should be considered in determining reliability.  Id.

In Wiley the court stated:

In reviewing the sufficiency of an affidavit under the totality of the circumstances test, courts must be careful not to review each component of the affidavit in isolation.  Even if each component is judged unsubstantial, the components viewed together may reveal in the informant's tip an internal coherence that gives weight to the whole. 

 

Wiley, 366 N.W.2d at 268 (quotation omitted).  An informant's reliability is enhanced by the informant's history of providing accurate information.  State v. Camp, 590 N.W.2d 115, 119 n.8 (Minn. 1999).  Also, an informant's reliability, and the reliability of the information provided, can be established by police corroboration.  State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990).

Here, the search warrant application states that the informant had made "numerous controlled purchases" of drugs for the Drug Task Force in the past.  In addition, the informant previously provided Deputy Burns with information that led to the "arrest of subjects" for marijuana possession with intent to distribute.  This established the informant's veracity or reliability.  Further, officers corroborated the location of Ahrendt's residence by speaking to his landlord.  The landlord also identified Ahrendt and a person identified as Chris as the persons who lived at the Leslie Township residence.  In addition, Todd County Department records indicated that Ahrendt is six feet, three inches tall, as the informant described.  Police also verified the description of the residence and two types of vehicles parked at the residence.  Finally, the search warrant application was not based solely on the information provided by the informant, but on information obtained from Reece-Jarman, as well.  Therefore, we believe the search warrant application contained enough information to substantiate the informant's veracity.

                        2)  Basis of Knowledge

            Ahrendt also contends that the search warrant application failed to establish the informant's basis of knowledge.  In assessing an informant's basis of knowledge, the issuing judge should consider (1) the "quantity and quality of detail in the [informant's] report," and (2) "whether police independently verified important details of the informant's report."  State v. Cook, 610 N.W.2d 664, 668 (Minn. App. 2000) (citing Alabama v. White, 496 U.S. 325, 331-32, 110 S. Ct. 2412, 2417 (1990)).  Under the totality-of-the-circumstances test, we will not view the informant's basis of knowledge in a hypertechnical fashion.  Wiley, 366 N.W.2d at 269.

Here, the informant told Deputy Burns that Ahrendt had "over a felony amount of marijuana that appeared to be packaged for sale" as well as methamphetamine that appeared to be packaged for sale.  The informant also saw a .22 caliber rifle and a shotgun in the residence.  The informant stated that one of the individuals who lived there was over six feet tall.  The informant made these observations while he was inside Ahrendt's residence so he was also able to describe the location of the residence and the vehicles parked there.

Although the information provided by the informant is not extensive, some of it was corroborated by independent police investigation.  The warrant application also included information officers received from Reece-Jarman about the location of the Leslie Township residence.  Considering all the facts alleged in the search warrant application, we conclude that the informant had a sufficient basis of knowledge.  

            B.  Direct connection between the alleged crime and place to be searched

            Ahrendt also contends that the information in the search warrant application lacked a direct connection between the possession of marijuana and Ahrendt's residence.  Minnesota courts historically have required a "direct connection, or nexus, between the alleged crime and the particular place to be searched."  Souto, 578 N.W.2d at 747.  Information to be considered when determining if drug activity will be found in a particular location includes a connection between the crime and the place to be searched, the freshness of the information, and the reliability of the source of the information.  Id.  The Minnesota Supreme Court also considers "the type of crime, the nature of the items sought, the extent of the suspect's opportunity for concealment, and the normal inferences as to where the suspect would normally keep the items."  Harris, 589 N.W.2d at 788 (quoting State v. Pierce, 358 N.W.2d 672, 673 (Minn. 1984)).

The informant saw a felony amount of marijuana as well as methamphetamine in Ahrendt's house.  When officers verified that Ahrendt was the tenant of the home containing the drugs, a connection was established.  Also, the information is "fresh" because it was obtained only a week before the search was executed.  Finally, Reece-Jarman told officers that he bought marijuana from Hohman, who was staying temporarily at Ahrendt's residence.  Thus, the officers established a direct connection between the possession of marijuana and Ahrendt's residence. 

C.  Staleness of the information

            Ahrendt also argues that the information supplied by the informant was stale.  When determining if information supporting a warrant is stale, a court may consider "the age of the person supplying the information, whether there is any indication of ongoing criminal activity, whether the items sought are innocuous or incriminating, and whether the property sought is easily disposable or transferable."  State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990).  Minnesota courts have held that information three or more days old provided probable cause to search for drugs where there was evidence of ongoing sales.  See State v. Cavegn, 356 N.W.2d 671, 673-74 (Minn. 1984) (concluding probable cause existed where observed sale of controlled substances at defendant's apartment occurred within a week before the search).

On October 24, 2000, the informant told Deputy Burns that his observations were made within the past 72 hours.  Thus, approximately five days elapsed between the time the informant made the observations in Ahrendt's residence and when the warrant was issued and executed on October 26, 2000.  Similarly, the information received from Reece-Jarman was only seven days old.  The informant described a large amount of marijuana and methamphetamine packaged for sale.  Combined with Reece-Jarman's statement that he bought marijuana from Hohmanwho was staying with Ahrendtthe search warrant application provided probable cause to believe that ongoing drug activity was taking place at Ahrendt's residence.  Therefore, on these facts, the information contained in the search warrant application was not stale, and the search warrant application provided a substantial basis to conclude that probable cause existed to search Ahrendt's home.

II

            Ahrendt argues that the evidence is insufficient to support the jury's verdict.  We disagree.  In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

            A.  Constructive Possession

            Ahrendt argues that the evidence is insufficient to sustain his conviction of possession of marijuana based on theories of constructive possession, joint possession or aiding and abetting.[3]  Specifically, Ahrendt argues that the drugs were found in places to which other people in the house had access and that the drugs belonged to Rabenhorst.   

Because Ahrendt was not in actual possession of the marijuana, the state must prove that he constructively possessed the marijuana.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  In order to prove constructive possession, the state must show that (a) the police found the item in a place under defendant's exclusive control to which other people did not normally have access, or (b) if police found the item in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was, at the time, consciously exercising dominion and control over it.  Id. at 105, 226 N.W.2d at 611.  This court looks to the totality of the circumstances in determining whether or not constructive possession has been proved.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986). 

Even though other individuals had access to all areas of the house and may also have been engaged in the possession and sale of marijuana, the evidence in this case sufficiently connects Ahrendt to the marijuana.  This court's holding in State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), review denied (Minn. June 13, 2000), is instructive.  In Denison, the court upheld a finding of constructive possession where marijuana was found in close proximity to the defendant's personal effects and in areas of the residence over which she likely exercised at least joint dominion and control with her husband.  Similarly, in State v. Lozar, 458 N.W.2d 434, 441 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990), the court held that the evidence was sufficient to support a finding that wife constructively possessed marijuana where large quantities of the substance were found in common areas of the home that wife jointly possessed with husband.

            Here, prior to the search, Ahrendt was identified as the tenant of the Leslie Township residence.  Officers found bills and a letter addressed to Ahrendt as well as a Sprint phone card in Ahrendt's name in the dining room where marijuana was found.  These facts suggest that Ahrendt exercised joint dominion and control over this area with Rabenhorst.  Furthermore, marijuana was found in several places throughout the house.  Marijuana was found in a drawer in an end table and in an atlas in the living room, in a duffel bag in the basement of the house, and in Rabenhorst's bedroom.  In addition, paraphernalia used for smoking the marijuana was found in the living room, and officers found $4,000 in cash and a shotgun in Ahrendt's bedroom.  In sum, marijuana was found all over the house; thus there was a strong probability that Ahrendt consciously exercised dominion and control over it.

            Moreover, when Ahrendt was arrested, officers found a marijuana pipe in his pocket.  Officers also found a dugout used for smoking and storing marijuana, and a pipe used for smoking marijuana in Ahrendt's car.  Further, Hohman testified that he had witnessed Ahrendt with the duffel bag that contained the felony amount of marijuana on several different occasions.  Hohman also testified that all of the drugs in the house belonged to Ahrendt and Rabenhorst and that he had seen Ahrendt smoking, selling, and in possession of marijuana.  Given these facts, it was reasonable for the jury to conclude that Ahrendt exercised dominion and control over the marijuana in the house, and thus was in constructive possession of the marijuana.  Since there was abundant circumstantial evidence that Ahrendt was in constructive possession of the marijuana, we need not reach the related issues of whether Hohman was an accomplice, and if so, whether there was independent corroboration of his testimony to establish that Ahrendt either jointly possessed the marijuana or aided and abetted Rabenhorst's possession.

III

            Finally, Ahrendt argues that the evidence is insufficient to support the district court's finding that he was in possession of a firearm at the time of the offense.  Minn. Stat. § 609.11 (2000) provides for mandatory minimum sentences in certain circumstances.  Subdivision 5(a) of this statuteoften referred to as the "firearms enhancement" provisionstates, in relevant part, that

any defendant convicted of an offense . . . in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years.

 

The phrase "had in possession" in the statute has been interpreted to include actual as well as constructive possession.  State v. Royster, 590 N.W.2d 82, 84-85 (Minn. 1999).  A person "has constructive possession of a firearm if he consciously exercises dominion and control over it."  Salcido-Perez v. State, 615 N.W.2d 846, 848 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).  Because the district court determined that Ahrendt was in constructive possession of the firearms found in the home, the district court imposed the three-year mandatory minimum sentence required by Minn. Stat. § 609.11. 

Ahrendt does not dispute that he is the owner of the two weapons; rather he argues that his ownership of the guns does not by itself establish possession.  Ahrendt is correct; but his argument is misplaced because the evidence demonstrates that Ahrendt was in constructive possession of the firearms.  The shotgun was found in Ahrendt's bedroom during the search.  Thus, he exercised dominion and control over the shotgun.  The .22 caliber rifle was found in the kitchen near the door.  Although others may have had access to the rifle, both Hohman and Rabenhorst testifiedand Ahrendt admitsthat both guns belonged to Ahrendt.  Therefore, Ahrendt exercised dominion and control over both firearms in his residence. 

Alternatively, Ahrendt argues that he is not subject to the mandatory minimum because his constructive possession of the firearms did not increase the risk of violence.  The mandatory minimum sentencing provisions of Minn. Stat. § 609.11 apply to cases of constructive possession where it is reasonable to assume that the presence of the weapon increased the risk of violence.  Royster, 590 N.W.2d at 85.  Factors to consider in determining whether a firearm increased the risk of violence of a controlled-substance offense include "the nature, type and condition of the firearm, its ownership, whether it was loaded, its ease of accessibility, its proximity to the drugs, why the firearm was present and whether the nature of the predicate offense is frequently or typically accompanied by use of a firearm."  Id.  The district court determines whether the firearm-enhancement requirements have been met by a preponderance of the evidence, and this court will affirm the district court's decision if it is supported by the totality of the circumstances.  Salcido-Perez, 615 N.W.2d at 848-49.

            Salcido-Perez is factually similar to the present case.  In Salcido-Perez, the defendant was stopped in his car, placed in custody, and brought back to his house where officers executed a search warrant.  Id. at 847.  Officers seized a loaded Colt .357 pistol in the kitchen closet and two unloaded shotguns in the rafters of the garage where the marijuana was found.  Id.  This court stated, in pertinent part, that

[t]he pistol was inherently dangerous, easily accessible to appellant, and, according to the state's evidence, a type of weapon commonly used by drug dealers in the course of their business.  Moreover, it was likely that the pistol was purposely kept to increase the risk of violence; it is difficult to imagine any purpose, other than violence, for an individual with nearly nine pounds of marijuanapackaged for saleto keep a loaded pistol in his kitchen.

 

Id. at 848.  Further, this court rejected Salcido-Perez's argument that there was no actual threat of violence because he was arrested away from his apartment and in police custody when the firearms were discovered.  Id. at 848-49.  Significantly, the court observed that "the statute does not require possession of a firearm at the time of arrest; it merely requires possession of a firearm ‘at the time of the offense.'"  Id. at 848 (quoting Minn. Stat. § 609.11, subd. 5).  Because Salcido-Perez had constructive possession of the loaded pistol when he possessed the marijuana, the court concluded that the risk of violence was sufficient to trigger the statute regardless of when Salcido-Perez was arrested.  Id. at 848-49.  Likewise, Ahrendt's argument that there was no actual threat of violence because he was arrested at work is without merit.

Here, like the defendant in Salcido-Perez, Ahrendt was arrested away from his home.  Like the officers in Salcido-Perez, officers found a loaded .22 caliber rifle in the kitchen near the door.  Officers found a shotgun in Ahrendt's bedroom.  Although no marijuana was found in Ahrendt's bedroom, it is clear that the supreme court has adopted a totality-of-the-circumstances test instead of a proximity test.  Royster, 590 N.W.2d at 85; Salcido-Perez, 615 N.W.2d at 848-49.  Thus, proximity of the firearm to the drugs is only one of several nonexclusive factors, and proximity is not essential to trigger the statute.  But in any event, here, the drugs were found all over the housein reasonable proximity to Ahrendt's firearms regardless of where they were located, and thus they presented a significant threat of violence.  Moreover, although Ahrendt claimed the shotgun was used for hunting, the trial court was entitled to credit the officer's testimony that the shotgun was a "close quarter combat type of weapon," with no hunting or sporting purpose.  We conclude that Ahrendt's possession of the firearms increased the risk of violence and that the totality of the circumstances supports the district court's decision to impose the three-year mandatory minimum sentence pursuant to Minn. Stat. § 609.11, subd. 5(a).

Affirmed.

 

 

 

RANDALL, Judge (concurring specially).

            I concur in the result.

 

 

 

 

 

 

[1] Deputy Burns stated that the book contained ledgers that indicated amounts sold, and people who owed money. 

[2] Hohman was not charged in this case. 

[3] The judge instructed the jury that Ahrendt could be convicted of possession of marijuana by aiding and abetting another's possession, joint possession with one or more individuals, or constructive possession.