Attorney Christian A. Straile, LLC
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Constructive Possession of a Controlled Substance

Constructive possession of a controlled substance is when the substance is not on the person or within a person's exclusive control; whereas actual possession is when the substance is found on the person such as having cocaine or marijuana in a pants pocket. Many times a constructive possession case includes more than one defendant, for example if drugs are found at a traffic stop, and several passengers are inside the vehicle. Usually the officers will try to have someone make an admission that the narcotics or contraband belongs to them. If all parties remain silent, then sometimes all people are charged.

In a constructive possession case the government has to prove not only that the person knew of the drugs, weapon, firearm or other contraband, but that the person can and dominion and control over it. In a recent case, law enforcement stopped a vehicle for an expired tag. The driver appeared nervous and began fumbling behind the visor that was located above his seat. The officer removed the driver and the passenger from the vehicle and placed the driver under arrest for driving with a suspended license.

The officer then conducted a search of the truck, which was littered with trash, and found contraband in three locations. The officer found an eyeglass case containing syringes and a residue-covered spoon behind the driver's visor. The officer found a round blue pill on the driver's side floorboard between the seat and the gas pedal, and a second round blue pill on the floorboard of the center console. The pills were tested and identified as oxycodone, a controlled substance.

The Court found that the knowledge and control over the passenger cabin cannot be inferred but must be proven by independent proof. As to the paraphernalia behind the visor, the Court found that the driver's repeated fumbling with the items behind the visor and his nervous appearance provided independent proof of knowledge and control over the paraphernalia that was found behind the visor.

However, the control requirement requires more than the mere ability to reach out and touch the item of contraband, such as pills on the floorboard. Furthermore, mere proximity or being close to the pills on the floor is insufficient in itself to meet this burden. The court found that the same nervousness that formed the basis of proof for the paraphernalia behind the visor, could not be used as proof of control over the oxycodone pills because it could be attributed to the fact that the driver had been stopped or that he was in possession of the paraphernalia.

Just because pills, pot, paraphernalia or other contraband are found in the same car as a defendant does not necessarily mean that the State can prove a constructive possession case. If you or a relative are accused of any offense including an actual or constructive possession case the click or call today.

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