Could a 17-year-old South Carolina driver be charged with possessing liquor found in the car’s trunk?

Plain-English summary

Pine Ridge's police chief asked whether a 17-year-old driver could be charged under South Carolina's then-current underage liquor possession statute. The officer had evidence the driver had been drinking, found no one else in the car, and later discovered liquor in the trunk during an inventory. Assistant Attorney General Robert Cook said a charge could be brought. He concluded that constructive possession could apply to liquor in a vehicle's trunk, depending on the evidence.

The opinion separated charging from conviction. Drawing on State v. Halyard, Cook said the State would need to show both knowledge that the liquor was present and possession or the right to control it. He said those questions usually belonged to a jury when the State presented competent evidence. The letter did not decide whether the specific driver's guilt had been proved.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Police and prosecutors

For the facts described in 1995, the Assistant AG considered a charge legally possible. He did not say that a driver's presence in the vehicle alone established knowledge of the liquor in the trunk. The constructive possession analysis required evidence of control or a right to control the liquor and knowledge of its presence.

Young drivers and defense counsel

The letter treated possession as a factual question. It cited a South Carolina case allowing constructive possession to be shown with direct or circumstantial evidence, while reserving the ultimate determination for the jury on a sufficient record.

Common questions

Was liquor in the trunk enough by itself to convict the driver? The letter did not say so. It required proof that the driver knew the liquor was there and actually or constructively possessed it.

Could the driver be charged even though the liquor was outside the passenger compartment? Yes, according to the 1995 opinion. Liquor in a trunk could support a constructive possession charge depending on the surrounding facts.

Who decided whether the driver had constructive possession? The writer said that, if the State presented competent evidence, knowledge and constructive possession would ultimately be jury questions.

Background and statutory framework

The statute quoted in the letter prohibited people under twenty-one from knowingly possessing alcoholic liquor. The writer borrowed the constructive possession test from State v. Halyard, a case involving a firearm in a car, and also discussed cases concerning contraband in a vehicle and evidence of knowledge. This was an informal opinion by the signing assistant, not a verdict in the driver's case or a statement of present law.

Citations and references

• Section 20-7-380: the underage liquor possession provision discussed in the letter.
• State v. Halyard: the principal constructive possession test the writer applied.
• State v. Perez and State v. Terrell: additional decisions cited on control and knowledge.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-7-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995apr7berry.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

April 7, 1995

Elizabeth Berry, Chief of Police
Town of Pine Ridge
I 015 Fish Hatchery Road
-west Columbia, South Carolina 29172
Re:

Informal Opinion

Dear Chief Berry:
You have asked whether a 17 year-old could be charged with violation of S.C. Code Ann. Section 20-7-380 where there is evidence that the individual had been drinking when the officer stopped the vehicle, no one else was in the car, and, subsequently, during a routine inventory of the automobile, liquor was discovered in the trunk. Section 20-7-380 provides in pertinent part: It is unlawful for any person under the age of twentyone years to purchase, or knowingly have in his possession, any alcoholic liquors. Any possession is prima facie evidence that it was knowingly possessed. [emphasis added]. It is my opinion that the doctrine of "constructive possession" would be applicable to this statute. An analogous case is State v. Halyard, 274 S.C. 397, 264 S.E.2d 841 (1980). There, the defendant was prosecuted for possession of a sawed-off shotgun. At the time of his arrest, he had the shotgun protruding from underneath the driver's side of the car. The defendant asserted that the trial court erred in refusing to direct a verdict of acquittal in his favor when there was insufficient evidence to prove him as being in possession of the shotgun. Rejecting this argument, the Court's analysis bears repeating here:

REMBERT c. DENNIS BLiLD!SG

•

POST OFFJCE Box 11549

•

COLL:MB!A, s.c. 29211-1549

•

TELEPHONE:

803~ i34-3970

•

FACSIMILE: 803-253-6283

Chief Beny
Page 2
April 7, 1995
This court has repeatedly recognized that a conviction for possession of contraband drugs requires proof of actual or constructive possession, coupled with knowledge of the presence of the drugs. To prove constructive possession the State must show a defendant had dominion and control, or the right to exercise· dominion and control over the substance. Such possession may be established by circumstantial as well as direct evidence. More than one person may possess the same property simultaneously. State v. Brown, 267 S.C. 311, 227 S.E.2d 674 (1976); see also State v. Wise, 272 S.C. 384, 252 S.E.2d 294 (1979); State v. Ellis, 263 S.C. 12, 207 S.E.2d 408 (1974); State v. Tabory. 260 S.C. 355, 196 S.E.2d 111 (1973). Although this court has never before so held, the same principles are applicable to possession of firearms or other objects. See United States v. Richardson, 504 F.2d 357 (5th Cir. 1974), cert den. 420 U.S. 978, 95 S.Ct. 1406, 43 L.Ed.2d 659 (1974). The rule is that unless there is a failure of competent evidence tending to prove the charge in the indictment, a trial judge should refuse a defendant's motion for a directed verdict of acquittal. State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979). We believe the evidence here, taken in the light most favorable to the State was more than sufficient to make a jury issue as to whether appellant was in constructive, if not actual, possession of the sawed-off shotgun at the time he was arrested. Courts in other jurisdictions have held on similar facts that the question of possession was properly submitted to the jury and that the jury was justified in finding the defendant in possession of the firearm. See County Court of Ulster v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); People v. Gant, 70 Cal. Reptr. 801, 264 Cal. App. 2d 420 (1968); Kennedy v. State, 136 Ga. App. 305, 220 S.E.2d 788 (1975); People v. Cannon, 18 Ill. App. 3d 781-, 310 N.E.2d 673 (1974) and cases cited therein; Commonwealth v. Albano, 373 Mass. 132, 365 N.Ed.2d 808 (1977); State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).

Chief Berry
Page 3
April 7, 1995
See also, State v. Perez, _ _ S.C. __, 430 S.E.2d 503 (1993) ["constructive possession" established where person is aware of presence of contraband and has ability to control its disposition.] It is well-settled that the presence of contraband in the trunk of an automobile can constitute "constructive possession" of such contraband, depending upon the facts and circumstances. For example, in State v. Marsh, 78 Or. App. 290, 716 P.2d 261 (Or. App. 1986), the defendant was convicted of the crime of being an ex-convict in possession of a firearm. The defendant was a passenger riding in the car and the gun was subsequently discovered in an inventory of the vehicle. Evidence submitted that the defendant knew the weapon was in the car was deemed by the court to be sufficient for proof of constructive possession by the defendant of the gun. Other cases are in accord. People v. Warrington, 597 N.Y.S.2d 119 (1993); United States v. Bell, 954 F.2d 232 (4th Cir. 1991); People v. Ehu, 24 Ill. App. 3d 340, 320 N.E.2d 536 (1974).

Of course, it goes without saying that the test prescribed by the Court in State v. Halyard must be met in order to establish constructive possession of the liquor. The Halyard Court requires that there must be knowledge of the presence of the contraband, together with proof of constructive possession. These are usually questions for the jury.

In possession of liquor cases, our Court has usually given considerable weight to the connection between the odor of alcohol and the establishment of knowledge of the person in constructive possession. For example, in State v. Terrell 131 S.C. 440, 128 S.E. 409 ( 1925), the Court approved of the trial judge's reasoning in denying a new trial for conviction of possession of unlawful liquors. The trial judge's analysis was stated as follows in denying the defendant a new trial: I think I will let it stand (verdict), gentlemen. If it was simply the liquor out there in the yard or around the premises hidden around, it might be a different proposition, but these officers testified they found two jugs and both had had liquor in them, and I think, when you couple the two together, the liquor in the yard and empty jugs in the house smelling of whiskey, and this b!Mng the defendant's house, these being his premises that he was in charge of, I think the jury was justified in convicting him, and I will let it stand.

Chief Berry
Page 4
April 7, 1995
The Supreme Court held that "[t]hese reasons show that this ground of the motion for a new trial was properly overruled." 131 S.C. at 441. See also, State v. Moorer, 160 S.C. 379, 158 S.E. 729 (1929). Based upon the foregoing, it is my opinion that a charge pursuant to Section 20-7380 could be brought. It is also my opinion that the doctrine of "constructive possession" would be applicable to Section 20-7-380, thus enabling the State to prove that the individual was in possession of the liquor in violation of Section 20-7-380. Of course, so long as there is competent evidence presented by the State, it would ultimately be a question for the jury as to whether the test enunciated in State v. Halyard -- knowledge, together with constructive possession -- would be met sufficient to convict. This letter is an infoIT11al opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I remain Very truly yours,

Robert D. Cook
Assistant Attorney General
RDC/an

•