§
Subdivision 1.Residences.
The presence of a controlled substance in open view in a room, other than a public place, under circumstances evincing an intent by one or more of the persons present to unlawfully mix, compound, package, or otherwise prepare for sale the controlled substance permits the fact finder to infer knowing possession of the controlled substance by each person in close proximity to the controlled substance when the controlled substance was found. The permissive inference does not apply to any person if:
(1) one of them legally possesses the controlled substance; or
(2) the controlled substance is on the person of one of the occupants.
§
Subd. 2.Passenger automobiles.
The presence of a controlled substance in a passenger automobile permits the fact finder to infer knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in the automobile. This inference may only be made if the defendant is charged with violating section 152.021, 152.022, 152.023, 152.0261, or 152.0262. The inference does not apply:
(1) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of the operator's trade;
(2) to any person in the automobile if one of them legally possesses a controlled substance; or
(3) when the controlled substance is concealed on the person of one of the occupants.
Notes of Decisions
Cited in
13
cases, 1991–2016 · leading case:
State v. Flowers, 734 N.W.2d 239 (Minn. 2007).
State v. Flowers, 734 N.W.2d 239 (Minn. 2007).
· cites it 8× “At trial, the court read the following instruction, using the language of Minn.Stat. § 152.028, subd. 1 (2006): The presence of a controlled substance in open view in a room, other than a public place, under circumstances evincing an intent by one or more of the persons present…”
State v. Litzau, 650 N.W.2d 177 (Minn. 2002).
· cites it 4× “1999) which, in turn, was based on Minn.Stat. § 152.028 (2000). This provision was aimed at alleviating the prosecution's burden of proof in constructive possession situations involving several occupants of a residence or passenger automobile in which controlled substances are…”
State v. Olson, 482 N.W.2d 212 (Minn. 1992).
· cites it 4× “The decisive issues in this marijuana possession case are whether the trial court erred in instructing the jury pursuant to Minn.Stat. § 152.028, subd. 1, which authorizes the fact finder in drug prosecutions to infer knowing possession if certain circumstances are present, and,…”
State of Minnesota v. Dominic Jason Allen Sam, 859 N.W.2d 825 (Minn. Ct. App. 2015).
· cites it 4× “” While Minn.Stat. § 152.028 (2014) permits the inference that a driver has knowing possession of everything in the vehicle, it does not negate other reasonable inferences.”
State v. Bauer, 776 N.W.2d 462 (Minn. Ct. App. 2009).
· cites it 2× “Although neither of these criminal statutes expressly establishes an intent element, a careful reading of the statutes establishes that the legislature has not indicated an intent to eliminate the mens rea requirement for these two offenses; rather, the legislature chose only to…”
State v. Olson, 466 N.W.2d 44 (Minn. Ct. App. 1991).
· cites it 10× “Is Minn.Stat. § 152.028, subd. 1, unconstitutionally vague or does it create an impermissible presumption so as to violate Olson’s right to due process? 4.”
State v. Kessler, 470 N.W.2d 536 (Minn. Ct. App. 1991).
· cites it 4× “His awareness and knowledge of the marijuana in a house he owns, possesses and controls constitute probable cause to believe that he intentionally aided or promoted his wife’s possession of marijuana.”
State v. White, 468 N.W.2d 556 (Minn. Ct. App. 1991).
· cites it 4× “The trial court based the instruction permitting the jury to infer possession on Minn.Stat. § 152.028, subd. 2 (Supp.1989), which provides: The presence of a controlled substance in a passenger automobile permits the factfinder to infer knowing possession of the controlled…”
State v. Benniefield, 668 N.W.2d 430 (Minn. Ct. App. 2003).
“§ 152.028, subd. 2(4) (2002) does not require knowledge or intent as to the location element, the district court did not err by refusing to allow appellant to argue his lack of intent or by failing to instruct the jury as to intent.”
State v. LaBatte, 482 N.W.2d 217 (Minn. 1992).
· cites it 3× “” Minnesota Statute § 152.028, subd. 2 (1990) provides as follows: The presence of a controlled substance in a passenger automobile permits the factfinder to infer knowing possession of.”
State of Minnesota v. Carlos Maurice Harris (Minn. Ct. App. 2016).
· cites it 4× “In Sam, we addressed a similar permissive inference statute, Minn. Stat. § 152.028 (2014), which allows the fact-finder to infer that the driver of a vehicle has knowing possession of a controlled substance found in the vehicle.”
State of Minnesota v. Jimmy Dawayne Lester (Minn. Ct. App. 2016).
· cites it 2× “See Minn. Stat. § 152.028 , subd. 2 (2014) (“The presence of a controlled substance in a passenger automobile permits the fact finder to infer knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in…”
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