Constructive possession means other than physical possession. In the world of criminal defense this usually means drugs or narcotics, firearms or other contraband are found but, not in the pocket or in the bra of the defendant. Constructive possession is an important concept for cases involving possession of a firearm by a convicted felon or a concealed firearm or weapon without a license. For example, you possess that television on your wall, you can move it, throw it away, and beat it with a baseball bat because you control it. However, no one carries around their flat screen in their back pocket.
To prove a constructive possession of drugs or other contraband, the government must prove (1) knowledge of the presence of and (2) the ability to exercise dominion and control over the item. For example, a houseguest knows the television is there but has no authority to beat it with a baseball bat. The houseguest does not constructively possess the television. A convicted felon cannot possess a firearm that is in a friend’s safe even if the felon knows the firearm is there.
Recently, an appellate court ruled that where a purple bag containing cocaine was found inside a grey bag, that grey bag also contained the identification of the defendant, and the grey bag was found under the driver’s seat of a car where the defendant had been seen inside, that was not enough to prove the possession of cocaine. Had the person in that case been caught when pulled over for a traffic stop, then the location of the cocaine would have likely been more important. But inside that bag were items belonging to at least one other person and there were two other people observed in the vehicle.
Joint possession cases are easier when one person admits to the ownership. However, most prosecutors will tell you that they prosecute possession and not ownership. So if your boyfriend asks you to place the cocaine in your bra, the “it is not mine” defense may not work for you. Once there is an arrest or notice to appear on a drug case, it is time to consult with an attorney.
What will work is hiring the right lawyer who will take the time to prepare a defense through depositions and motion hearings. Whether it is your first time or you are seasoned in your court appearances, you should not go it alone. Please click or call for a consultation.