(dissenting).
I believe the court errs by expanding the definition of “constructive possession” beyond what is supported by the relevant case-law, stretching the statutory reach of “possession” under 21 U.S.C. § 841(a)(1) dangerously and unnecessarily far.
My colleagues concede that it is at least arguable that Zavala was not shown to possess the drugs while he and Santos were in the room together; and that had the agents broken into the room and arrested Zavala at this point, a directed verdict of acquittal might have been required. They contend, however, that once Zavala, on Santos’ suggestion, locked the drugs in his hotel room while the two men went to get a drink, Zavala “possessed” the drugs, by virtue of the facts that he had yielded actual possession of the drugs, and that he had priority of access to the room in which they were stored.
The court reaches this conclusion by relying on an interpretation of “constructive possession” which I cannot help thinking is both incorrect and overbroad. “Constructive possession,” as the majority properly states, is established by showing that a person knowingly had the power and intention at a given time to exercise dominion and control over an object, either directly or through others. See United States v. Acevedo, 842 F.2d 502, 507 (1st Cir.1988) (emphasis added). The court, in turn, defines “power” in physical terms: in its view, the requisite “power” exists if the contraband is in a location specially accessible to a defendant, such as in one’s home, hotel room, or car, or located within his or her reach.
I am persuaded that this reliance on physical power of access understates the law’s requirements. Although, as the court points out, a lay person’s understanding of “possession” is not helpful, I cannot so easily sidestep our and other courts’ use of the word “dominion,” which connotes ownership or a right to property. Black’s Law Dictionary 486 (6th ed. 1990).
More importantly, in this and other circuits, the caselaw supports a reading of “power” as the right or authority to exercise control, or dominion and control, over something not in one’s actual possession. See United States v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir.1992); United States v. Latham, 874 F.2d 852, 861 (1st Cir.1989); United States v. Lamare, 711 F.2d 3, 5-6 (1st Cir.1983), see also United States v. Manzella, 791 F.2d 1263, 1266-67 (7th Cir.1986) (Posner, J.) (defendant “must have the right (not the legal right, but the recognized authority in his criminal milieu) to possess [the drugs].... Mere association with those who possess the drugs is not good enough.”); United States v. Tolliver, 780 F.2d 1177, 1183 *10(5th Cir.1986), vacated and remanded on other grounds, 479 U.S. 1074, 107 S.Ct. 1267, 94 L.Ed.2d 128 (1987); United States v. Reese, 561 F.2d 894, 898 n. 8 (D.C.Cir.1977).
For example, in Ocampo-Guarin, we found sufficient evidence of “power” to establish constructive possession of a suitcase and the cocaine inside it, where the defendant carried baggage claim tickets “which represented her legal right to reclaim the luggage.” 968 F.2d at 1410. Similarly, in United States v. Lamare, we upheld a finding of constructive possession of a firearm that had been left as collateral for a towing charge owed by the defendant, because the defendant “could have taken actual possession of the pistol at any time by paying the towing charge ... and intended to do so.” 711 F.2d at 5-6.
The fact that contraband is located in a place specially accessible to a defendant may be sufficient to establish a defendant’s power to exercise dominion or control over it, and thus support a finding of constructive possession, if there is a showing that the defendant has the right or authority to exercise control over the object at issue, or if the record is silent as to his right or authority over the contraband. But here the very facts militating against a finding of constructive possession while Santos and Zavala were in the room together — the fact that the drugs had not been paid for, the fact that Zavala was not the intended recipient, and Santos’ refusal to follow Zavala’s suggestion to transfer them to another room — effectively refute any presumption that Zavala had any claim on the drugs.
None of the cases cited by the majority support the conclusion that, where knowledge is admitted or inferred, the location of contraband in a place specially accessible to a defendant, without more, is sufficient to establish constructive possession. For example, in United States v. Echeverri, 982 F.2d 675, 678 (1st Cir.1993), it was the “totality of the circumstances” — the fact that drugs and drug paraphernalia were found in plain view, only four feet from the defendant himself, together with the fact that the contraband was found in his apartment — that persuaded the court that the evidence was sufficient to support a finding of constructive possession. And in United States v. Chapdelaine, 989 F.2d 28, 33-34 (1st Cir.1993), the court found defendant in constructive possession of bullets found in his bedroom closet based, in part, on the fact that they matched those in a firearm found in defendant’s actual possession.
In United States v. Wight, 968 F.2d 1393, 1397 (1st Cir.1992), the single case cited by the majority that approaches the situation before us, a jury convicted Wight, the passenger in a van in which a pistol was found between the driver’s and the passenger’s seat, of possessing the pistol during the drug trafficking crime, but acquitted the driver of the firearm possession charge. We upheld the finding of Wight’s constructive possession of the firearm, noting that based on evidence of Wight’s leading role in the drug transaction, “[i]t was reasonable for the jury to infer that he, and not [the driver], was in charge of the operation and, as such, exercised control over [the driver], the van, its contents, and the firearm.” Id. at 1398.
I find more apposite the Seventh Circuit’s decision in United States v. DiNovo, 523 F.2d 197 (7th Cir.1975). In DiNovo, the court reversed a wife’s conviction for possession of heroin, notwithstanding her cohabitation with her husband in a trailer where 2 pounds of heroin and other drug paraphernalia were found. Id. at 201-02. The court found that even if the wife knew of her husband’s drug possession, this did not mean that she possessed the drugs, absent a showing of her right to exercise control over them. Id.
To the extent that the court jettisons all idea of legal right or practical claim to the contraband and assesses “power” in terms of physical capacity to seize, it vastly widens the concept of constructive possession. Contraband stored in the locked box of a another person could be found within the power of a defendant skilled in the use of lock picking or explosives. Or, in a case like Wight, the finding as to constructive possession would turn on whether the driver was bigger and tougher than the passenger.
The same weakness affects the court’s reasoning as to the presence of intent to exercise dominion over the drugs. The particular intent is not, as the court would have it, to facilitate transfer of the drugs to their in*11tended recipient, his presumed associate Pal-estino. The required intent is that defendant intends to exercise his claim of dominion over the drugs, i.e., to take control for himself. So the court, in my view, stretches the contours of both “power” and “intent.”
Finally, we should remember why we are of divided views about the propriety of extending the scope of constructive possession beyond that of any apposite authority. It is because, as the court correctly notes, Zavala could have been charged with conspiracy to possess drugs with intent to distribute them, or with aiding and abetting Palestine’s attempt to possess with intent to distribute. But Zavala was not so charged; and the mere fact that guilt is in the air should not allow us to extend the reach of the criminal possession statute in these circumstances. There needs to be some meaningful distinction between the crime of conspiracy to possess, and possession itself. The rule of the present case, allowing the government to prove constructive possession simply by having a confidential informant deposit contraband in a hotel room shared with a target, and then leave the room with this person, with the arresting officers waiting until the door shuts, would erode any such distinction.
I am uncomfortable in taking this significant step — particularly where the purpose served is to bail out a maladroit prosecution. I therefore respectfully dissent.
ORDER OF THE COURT
Entered: June 28, 1994
Before BREYER,* Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, SELYA, CYR, BOUDIN and STAHL, Circuit Judges.
The petition for rehearing is denied. Judge Coffin would grant rehearing. A majority of the judges entitled to vote on the suggestion for rehearing en bane not having voted in favor of rehearing en bane, the suggestion for rehearing en banc is denied. Judges Selya and Cyr favor rehearing en banc in this case.
Chief Judge Stephen Breyer did not participate in the final vote.