Armstrong

Defendant Donald William Armstrong, petitioner herein, was arrested on a charge of possessing a controlled substance for sale in violation of Health and Safety Code section 11378. The arrest grew out of a controlled purchase during which he paid for the narcotics but never received actual physical possession of the contraband. The question petitioner raises is whether under such circumstances he can be said to have constructively possessed the narcotic. He seeks a writ, arguing the trial court erred in denying his motion to dismiss the charge. The People respond that the defendant had fulfilled all commercial obligations respecting the sale and his resulting right to the contraband constituted constructive possession. We conclude that neither the existence of a police controlled setting for the purchase nor the existence of an agreement to purchase the contraband are determinative of a finding of constructive possession. We further conclude there is no evidence in the record before us that petitioner exhibited control over or right to control the contraband. Thus we grant the writ.

Background

The relevant facts are not in dispute. During the first week of July 1989,…