concurring.
For the reasons Judge Schwelb states, I agree that our prior decisions allowed the jury fairly to conclude that appellants, including Rivas, had constructive possession of the drugs. Those decisions treat the combined facts of presence in a car (as distinct from a room, a plane, or a train) and immediate proximity to contraband in plain view as enough to prove shared possession, if unexplained to the jury’s satisfaction. I do not pretend that this proposition is unarguable. Perhaps, especially in today’s culture, the fact that a passenger has taken no steps to distance himself from drugs visibly meant for sale lying inches from him in a car driven by a friend says nothing, or too little, about whether he personally has “some stake in [the drugs], some power over them.” United States v. Pardo, 204 U.S.App. D.C. 263, 277, 636 F.2d 535, 549 (1980).1 Maybe, too, the unlikelihood that someone openly transporting drugs for sale would pick up an innocent friend or stranger, People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546, 550 (1975), is not enough to prove — beyond a reasonable doubt — that the passenger has a “substantial voice visa-vis the drug[s].” United States v. Staten, 189 U.S.App. D.C. 100, 106, 581 F.2d 878, 884 (1978). But, as Judge Schwelb points out, the fact that at least one legislature has found these facts sufficient to create a rebuttable presumption of shared possession, which the Supreme Court in turn has sustained, County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), provides substantial support for the reasonableness of letting a jury draw that inference as well when offered no other explanation for the defendant’s knowing presence. Indeed, in Ulster County, after rejecting the respondent-defendants’ argument that they could not have shared possession because the prohibited guns were in a co-defendant’s pocketbook (rather than on the console equidistant between driver and passenger, as in our case), the Supreme Court analyzed the case in terms relevant here:
[T]he 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.
Id. at 164-65, 99 S.Ct. 2213. Judge Ruiz’s suggestion, post, that by allowing this inference without a statutory presumption we usurp the legislature’s role is strained: the legislature has not defined “possession,” much less “constructive” possession, but instead has incorporated the common law definition of those terms developed by the courts.
What suffices for constructive possession has long -bedeviled judges and, no doubt, juries. See, e.g., United States v. Holland, 144 U.S.App. D.C. 225, 227, 445 F.2d 701, 703 (1971) (Tamm, J. concurring) (“The more cases one reads on constructive possession the deeper is he plunged into a thicket of subjectivity.”). The rule of our cases that we apply here, like the statutory inference upheld in Ulster County, is an effort to objectify the standard as well as provide clear notice that the defense “they weren’t on me, so they weren’t mine” does not work in the narrow confines of an automobile, a prime facilitator of drug trafficking. Before discarding that rule, we should be sure we are not leaving in its place the haphazard regime of deei-*660sionmaking Judge Tamm decried in which defense attorneys and prosecutors “present their cases with unfortunate knowledge that the law of constructive possession is what we will say it is in our next opinion.” Id. at 227, 445 F.2d at 704.
. Certainly whether Rivas knew the drugs were next to him was a jury question, even though the police discovered them using a flashlight. Moreover, when Rivas stepped out of the car to talk to someone, he left the door open, reasonably indicating that he intended to re-enter the car and so was more than a momentary or ''casual” occupant.