County Court of Ulster City v. Allen
442 U.S. 140 (1979)

Mr. Justice STEVENS delivered the opinion of the Court.

A New York statute provides that, with certain exceptions, the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle. The United States Court of Appeals for the Second Circuit held that respondents may challenge the constitutionality of this statute in a federal habeas corpus proceeding and that the statute is "unconstitutional on its face.'' 568 F.2d 998, 1009. We granted certiorari to review these holdings and also to consider whether the statute is constitutional in its application to respondents. 439 U.S. 815.

Four persons, three adult males (respondents) and a 16-year-old girl (Jane Doe, who is not a respondent here), were jointly tried on charges that they possessed two loaded handguns, a loaded machinegun, and over a pound of heroin found in a Chevrolet in which they were riding when it was stopped for speeding on the New York Thruway shortly after noon on March 28, 1973. The two large-caliber handguns, which together with their ammunition weighed approximately six pounds, were seen through the window of the car by the investigating police officer. They were positioned crosswise in an open handbag on either the front floor or the front seat of the car on the passenger side where Jane Doe was sitting. Jane Doe admitted that the handbag was hers. The machinegun and the heroin were discovered in the trunk after the police pried it open. The car had been borrowed from the driver's brother earlier that day; the key to the trunk could not be found in the car or on the person of any of its occupants, although there was testimony that two of the occupants had placed something in the trunk before embarking in the borrowed car. The jury convicted all four of possession of the handguns and acquitted them of possession of the contents of the trunk.

Counsel for all four defendants objected to the introduction into evidence of the two handguns, the machinegun, and the drugs, arguing that the State had not adequately demonstrated a connection between their clients and the contraband. The trial court overruled the objection, relying on the presumption of possession created by the New York statute. Tr. 474-483. Because that presumption does not apply if a weapon is found "upon the person'' of one of the occupants of the car, ... the three male defendants also moved to dismiss the charges relating to the handguns on the ground that the guns were found on the person of Jane Doe. Respondents made this motion both at the close of the prosecution's case and at the close of all evidence. The trial judge twice denied it, concluding that the applicability of the "upon the person'' exception was a question of fact for the jury....

At the close of the trial, the judge instructed the jurors that they were entitled to infer possession from the defendants' presence in the car. He did not make any reference to the "upon the person'' exception in his explanation of the statutory presumption, nor did any of the defendants object to this omission or request alternative or additional instructions on the subject....

In this case, the Court of Appeals undertook the task of deciding the constitutionality of the New York statute "on its face.'' Its conclusion that the statutory presumption was arbitrary rested entirely on its view of the fairness of applying the presumption in hypothetical situations--situations, indeed, in which it is improbable that a jury would return a conviction, or that a prosecution would ever be instituted. We must accordingly inquire whether these respondents had standing to advance the arguments that the Court of Appeals considered decisive. An analysis of our prior cases indicates that the answer to this inquiry depends on the type of presumption that is involved in the case.

Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime--that is, an "ultimate'' or "elemental'' fact--from the existence of one or more "evidentiary'' or "basic'' facts. E.g., Barnes v. United States, 412 U.S. 837, 843-844; Tot v. United States, 319 U.S. 463, 467; Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 42. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device's constitutional validity in a given case remains constant: the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364; Mullaney v. Wilbur, 421 U.S., at 702-703, n.31.

The most common evidentiary device is the entirely permissive inference or presumption, which allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. See, e.g., Barnes v. United States, supra, at 840 n.3. In that situation the basic fact may constitute prima facie evidence of the elemental fact. See, e.g., Turner v. United States, 396 U.S. 398, 402 n.2. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt'' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.

A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the "no reasonable doubt'' burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. In this situation, the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption's constitutional validity is logically divorced from those facts and based on the presumption's accuracy in the run of cases. It is for this reason that the Court had held it irrelevant in analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction.

Without determining whether the presumption in this case was mandatory, the Court of Appeals analyzed it on its face as if it were. In fact, it was not, as the New York Court of Appeals had earlier pointed out. 40 N.Y.2d, at 510-511, 354 N.E.2d, at 840.

The trial judge's instructions make it clear that the presumption was merely a part of the prosecution's case, that it gave rise to a permissive inference available only in certain circumstances, rather than a mandatory conclusion of possession, and that it could be ignored by the jury even if there was no affirmative proof offered by defendants in rebuttal. The judge explained that possession could be actual or constructive, but that constructive possession could not exist without the intent and ability to exercise control or dominion over the weapons. He also carefully instructed the jury that there is a mandatory presumption of innocence in favor of the defendants that controls unless it, as the exclusive trier of fact, is satisfied beyond a reasonable doubt that the defendants possessed the handguns in the manner described by the judge. In short, the instructions plainly directed the jury to consider all the circumstances tending to support or contradict the inference that all four occupants of the car had possession of the two loaded handguns and to decide the matter for itself without regard to how much evidence the defendants introduced.

Our cases considering the validity of permissive statutory presumption such as the one involved here have rested on an evaluation of the presumption as applied to the record before the Court. None suggests that a court should pass on the constitutionality of this kind of statute "on its face.'' It was error for the Court of Appeals to make such a determination in this case.


As applied to the facts of this case, the presumption of possession is entirely rational. Notwithstanding the Court of Appeals' analysis, respondents were not "hitchhikers or other casual passengers,'' and the guns were neither "a few inches in length'' nor "out of [respondents'] sight.''... The argument against possession by any of the respondents was predicated solely on the fact that the guns were in Jane Doe's pocketbook. But several circumstances--which, not surprisingly, her counsel repeatedly emphasized in his questions and his argument--made it highly improbable that she was the sole custodian of those weapons.

Even if it was reasonable to conclude that she had placed the guns in her purse before the car was stopped by police, the facts strongly suggest that Jane Doe was not the only person able to exercise dominion over them. The two guns were too large to be concealed in her handbag. The bag was consequently open, and part of one of the guns was in plain view, within easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat.

Moreover, it is highly improbable that the loaded guns belonged to Jane Doe or that she was solely responsible for their being in her purse. As a 16-year-old girl in the company of three adult men she was the least likely of the four to be carrying one, let alone two, heavy handguns. It is far more probable that she relied on the pocketknife found in her brassiere for any necessary self-protection. Under these circumstances, it was not unreasonable for her counsel to argue and for the jury to infer that when the car was halted for speeding, the other passengers in the car anticipated the risk of a search and attempted to conceal their weapons in a pocketbook in the front seat. The inference is surely more likely than the notion that these weapons were the sole property of the 16-year-old girl.

Under these circumstances, the jury would have been entirely reasonable in rejecting the suggestion--which, incidentally, defense counsel did not even advance in their closing arguments to the jury--that the handguns were in the sole possession of Jane Doe. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile. In such a case, it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons. The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States, 319 U.S., at 467, and restated in Leary v. United States, 395 U.S., at 36. For there is a "rational connection'' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is "more likely than not to flow from'' the former.

Respondents argue, however, that the validity of the New York presumption must be judged by a "reasonable doubt'' test rather than the "more likely than not'' standard employed in Leary. Under the more stringent test, it is argued that a statutory presumption must be rejected unless the evidence necessary to invoke the inference is sufficient for a rational jury to find the inferred fact beyond a reasonable doubt. See Barnes v. United States, 412 U.S., at 842-843. Respondents' argument again overlooks the distinction between a permissive presumption on which the prosecution is entitled to rely as one not necessarily sufficient part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense.

In the latter situation, since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. But in the former situation, the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.

The permissive presumption, as used in this case, satisfied the Leary test. And, as already noted, the New York Court of Appeals has concluded that the record as a whole was sufficient to establish guilt beyond a reasonable doubt.

The judgement is reversed.

Mr. Justice POWELL, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting.

I agree with the Court that there is no procedural bar to our considering the underlying constitutional question presented by this case. I am not in agreement, however, with the Court's conclusion that the presumption as charged to the jury in this case meets the constitutional requirements of due process as set forth in our prior decisions. On the contrary, an individual's mere presence in an automobile where there is a handgun does not even make it "more likely than not'' that the individual possesses the weapon.


In the criminal law, presumptions are used to encourage the jury to find certain facts, with respect to which no direct evidence is presented, solely because other facts have been proved. (16)1 See, e.g., Barnes v. United States, 412 U.S. 837, 840 n.3; United States v. Romano, 382 U.S. 136, 138 (1965). The purpose of such presumptions is plain: Like certain other jury instructions, they provide guidance for jurors' thinking in considering the evidence laid before them. Once in the juryroom, jurors necessarily draw inferences from the evidence--both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.

Legitimate guidance of a jury's deliberations is an indispensable part of our criminal justice system. Nonetheless, the use of presumptions in criminal cases poses at least two distinct perils for defendants' constitutional rights. The Court accurately identifies the first of these as being the danger of interference with "the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.'' If the jury is instructed that it must infer some ultimate fact (that is, some element of the offense) from proof of other facts unless the defendant disproves the ultimate fact by a preponderance of the evidence, then the presumption shifts the burden of proof to the defendant concerning the element thus inferred. (17)2

But I do not agree with the Court's conclusion that the only constitutional difficulty with presumptions lies in the danger of lessening the burden of proof the prosecution must bear. As the Court notes, the presumptions thus far reviewed by the Court have not shifted the burden of persuasion; instead they either have required only that the defendant produce some evidence to rebut the inference suggested by the prosecution's evidence, see Tot v. United States, 319 U.S. 463 (1943), or merely have been suggestions to the jury that it would be sensible to draw certain conclusions on the basis of the evidence presented. See Barnes v. United States, supra, 412 U.S. at 840 n.3. Evolving from our decisions, therefore, is a second standard for judging the constitutionality of criminal presumptions which is based--not on the constitutional requirement that the State be put to its proof--but rather on the due process rule that when the jury is encouraged to make factual inferences, those inferences must reflect some valid general observation about the natural connection between events as they occur in our society.

This due process rule was first articulated by the Court in Tot v. United States, supra, in which the Court reviewed the constitutionality of 2(f) of the Federal Firearms Act. That statute provided in part that "possession of a firearm or ammunition by any ... person [who has been convicted of a crime of violence] shall be presumptive evidence that such firearm or ammunition was shipped or transported [in interstate or foreign commerce].'' As the Court interpreted the presumption, it placed upon a defendant only the obligation of presenting some exculpatory evidence concerning the origins of a firearm or ammunition, once the Government proved that the defendant had possessed the weapon and had been convicted of a crime of violence. Noting that juries must be permitted to infer from one fact the existence of another essential to guilt, "if reason and experience support the inference,'' id., at 467, the Court concluded that under some circumstances juries may be guided in making these inferences by legislative or common-law presumptions, even though they may be based "upon a view of relation broader than that a jury might take in a specific case,'' 319 U.S., at 468. To provide due process, however, there must be at least "a rational connection between the facts proved and the fact presumed''--a connection grounded in "common experience.'' Id., at 467. In Tot, the Court found that connection to be lacking.

Subsequently, in Leary v. United States, 395 U.S. 6 (1969), the Court reaffirmed and refined the due process requirement of Tot that inferences specifically commended to the attention of jurors must reflect generally accepted connections between related events. At issue in Leary was the constitutionality of a federal statute making it a crime to receive, conceal, buy, or sell marihuana illegally brought into the United States, knowing it to have been illegally imported. The statute provided that mere possession of marihuana "shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.'' After reviewing the Court's decisions in Tot v. United States, supra, and other criminal presumption cases, Mr. Justice Harlan, writing for the Court, concluded "that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.'' 395 U.S., at 36 (footnote omitted). The Court invalidated the statute, finding there to be insufficient basis in fact for the conclusion that those who possess marihuana are more likely than not to know that it was imported illegally. (18)5

Most recently, in Barnes v. United States, supra, we considered the constitutionality of a quite different sort of presumption--one that suggested to the jury that "[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference ... that the person in possession knew the property had been stolen.'' Id., 412 U.S. at 840 n.3. After reviewing the various formulations used by the Court to articulate the constitutionally required basis for a criminal presumption, we once again found it unnecessary to choose among them. As for the presumption suggested to the jury in Barnes, we found that it was well founded in history, common sense, and experience, and therefore upheld it as being "clearly sufficient to enable the jury to find beyond a reasonable doubt'' that those in the unexplained possession of recently stolen property know it to have been stolen. Id., at 845.

In sum, our decisions uniformly have recognized that due process requires more than merely that the prosecution be put to its proof. (19)6 In addition, the Constitution restricts the court in its charge to the jury by requiring that, when particular factual inferences are recommended to the jury, those factual inferences be accurate reflections of what history, common sense, and experience tell us about the relations between events in our society. Generally this due process rule has been articulated as requiring that the truth of the inferred fact be more likely than not whenever the premise for the inference is true. Thus, to be constitutional a presumption must be at least more likely than not true.


In the present case, the jury was told that,

Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, [under] these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.

Undeniably, the presumption charged in this case encouraged the jury to draw a particular factual inference regardless of any other evidence presented: to infer that respondents possessed the weapons found in the automobile "upon proof of the presence of the machine gun and the hand weapon'' and proof that respondents "occupied the automobile at the time such instruments were found.'' I believe that the presumption thus charged was unconstitutional because it did not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns. People present in automobiles where there are weapons simply are not "more likely than not'' the possessors of those weapons.

Under New York law, "to possess'' is "to have physical possession or otherwise to exercise dominion or control over tangible property.'' N.Y. Penal Law 10.00(8). Plainly the mere presence of an individual in an automobile--without more--does not indicate that he exercises "dominion or control over'' everything within it. As the Court of Appeals noted, there are countless situations in which individuals are invited as guests into vehicles the contents of which they know nothing about, much less have control over. Similarly, those who invite others into their automobile do not generally search them to determine what they may have on their person; nor do they insist that any handguns be identified and placed within reach of the occupants of the automobile. Indeed, handguns are particularly susceptible to concealment and therefore are less likely than are other objects to be observed by those in an automobile.

In another context, this Court has been particularly hesitant to infer possession from mere presence in a location, noting that "[p]resence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at [the illegal] still, its connection with possession is too tenuous to permit a reasonable inference of guilt--'the inference of the one from proof of the other is arbitrary....' Tot v. United States, 319 U.S. 463, 467.'' United States v. Romano, 382 U.S. 136, 141 (1965). We should be even more hesitant to uphold the inference of possession of a handgun from mere presence in an automobile, in light of common experience concerning automobiles and handguns. Because the specific factual inference recommended to the jury in this case is not one that is supported by the general experience of our society, I cannot say that the presumption charged is "more likely than not'' to be true. Accordingly, respondents' due process rights were violated by the presumption's use.

As I understand it, the Court today does not contend that in general those who are present in automobiles are more likely than not to possess any gun contained within their vehicles. It argues, however, that the nature of the presumption here involved requires that we look, not only to the immediate facts upon which the jury was encouraged to base its inference, but to the other facts "proved'' by the prosecution as well. The Court suggests that this is the proper approach when reviewing what it calls "permissive'' presumptions because the jury was urged "to consider all the circumstances tending to support or contradict the inference.''

It seems to me that the Court mischaracterizes the function of the presumption charged in this case. As it acknowledges was the case in Romano, supra, the "instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence'' in the automobile. (20)7 The Court nevertheless relies on all of the evidence introduced by the prosecution and argues that the "permissive'' presumption could not have prejudiced defendants. The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored.

I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to "infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons.'' But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents' presence in the automobile. For all we know, the jury rejected all of the prosecution's evidence concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile. (21)8 For purposes of reviewing the constitutionality of the presumption at issue here, we must assume that this was the case.

The Court's novel approach in this case appears to contradict prior decisions of this Court reviewing such presumptions. Under the Court's analysis, whenever it is determined that an inference is "permissive,'' the only question is whether, in light of all of the evidence adduced at trial, the inference recommended to the jury is a reasonable one. The Court has never suggested that the inquiry into the rational basis of a permissible inference may be circumvented in this manner. Quite the contrary, the Court has required that the "evidence necessary to invoke the inference [be] sufficient for a rational juror to find the inferred fact....'' Barnes v. United States, 412 U.S. 843 (1973) (emphasis supplied). See Turner v. United States, 396 U.S. 398, 407 (1970). Under the presumption charged in this case, the only evidence necessary to invoke the inference was the presence of the weapons in the automobile with respondents--an inference that is plainly irrational.

In sum, it seems to me that the Court today ignores the teaching of our prior decisions. By speculating about what the jury may have done with the factual inference thrust upon it, the Court in effect assumes away the inference altogether, constructing a rule that permits the use of any inference--no matter how irrational in itself--provided that otherwise there is sufficient evidence in the record to support a finding of guilt. Applying this novel analysis to the present case, the Court upholds the use of a presumption that it makes no effort to defend in isolation. In substance, the Court--applying an unarticulated harmless error standard--simply finds that the respondents were guilty as charged. They may well have been but rather than acknowledging this rationale, the Court seems to have made new law with respect to presumptions that could seriously jeopardize a defendant's right to a fair trial. Accordingly, I dissent.

Do you agree with the majority's characterization of the device involved in Ulster City as a "permissive inference''? If the factfinder's responsibility is to find the ultimate facts beyond a reasonable doubt based on evidence presented by the prosecution, how can the court apply any standard other than the "beyond-a-reasonable-doubt-rational-connection test'' to this device, regardless of how it is characterized? Has the majority applied a standard even lower than the preponderance standard, i.e., "not-irrational''? Is the majority correct in considering all the evidence in the case in deciding whether the presumption passes constitutional muster? Is the dissent correct in insisting that the presumption be judged solely on the basis of the relationship between the basic fact and the presumed fact? Did the device in this case operate to shift the burden of production to the defendant? Is this constitutional? Is the decision in this case consistent with proposed Rule 303?

17. 2. The Court suggests that presumptions that shift the burden of persuasion to the defendant in this way can be upheld provided that "the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.'' As the present case involves no shifting of the burden of persuasion, the constitutional restrictions on such presumptions are not before us, and I express no views on them.

It may well be that even those presumptions that do not shift the burden of persuasion cannot be used to prove an element of the offense, if the facts proved would not permit a reasonable mind to find the presumed fact beyond a reasonable doubt. My conclusion in Part II, infra, makes it unnecessary for me to address this concern here.

18. 5. Because the statute in Leary v. United States, 395 U.S. 6 (1969), was found to be unconstitutional under the "more likely than not'' standard, the Court explicitly declined to consider whether criminal presumptions also must follow "beyond a reasonable doubt'' from their premises, if an essential element of the crime depends upon the presumption's use. Id., at 36 n.64. See supra n.2. The Court similarly avoided this question in Turner v. United States, 396 U.S. 398 (1970).

19. 6. The Court apparently disagrees, contending that "the factfinder's responsibility ... to find the ultimate facts beyond a reasonable doubt'' is the only constitutional restraint upon the use of criminal presumptions at trial.

20. 7. In commending the presumption to the jury, the court gave no instruction that would have required a finding of possession to be based on anything more than mere presence in the automobile. Thus, the jury was not instructed that it should infer that respondents possessed the handguns only if it found that the guns were too large to be concealed in Jane Doe's handbag; that the guns accordingly were in the plain view of respondents; that the weapons were within "easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat''; that it was unlikely that Jane Doe was solely responsible for the placement of the weapons in her purse; or that the case was "tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile.''


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