What is Constructive Possession?

Posted by & filed under Drug Crimes, Property Crimes, Search and Seizure.

 

Possession does dot always Mean that it’s in Your Pocket

One of those reality TV crime shows caught my eye the other night with an incident involving a female motorist. She was driving along a Western interstate highway and made a few erratic moves after passing a cop who was moving along the slower lane. The cop pulled her over because he sensed that she was impaired in some fashion. He asked if she had been drinking; she said no. He asked about drug use; she said no. Still, she appeared nervous, and so he asked if he could search her vehicle to which she replied “Yes.”

 

The search of the driver’s side of the car revealed a pipe used for smoking drugs. The woman said it wasn’t hers. The cop asked if she owned the car. She said she did not. She was adamant that the pipe was not hers and that she was not a drug user.

 

The officer ticketed her for possession of drug paraphernalia but did not arrest the woman, pointing out that since she was in possession of the car, she was responsible for its contents.

 

This story could serve as an example of laws on possession. A common theme in possession law is that if you own something – a car, a boat, a safe-deposit box, a house, etc. – you can be held responsible for the items within it, even if you do not know about them or if you are not physically holding the item or carrying it around. In the legal world, this is called “constructive possession.”

 

Let’s take a scenario involving a safe-deposit box in a bank. The bank official informs police that there are stolen jewels in the box. You are the holder of the only key to the box. Through “constructive possession,” you can be charged with possession of stolen goods, even though you might know nothing of the jewels or how they got there. And thus, the stage is set for a criminal investigation and a costly legal battle.

 

Or, let’s pretend that you own a house but you take in a roommate. Unknown to you (perhaps), the young woman to whom you rent a room is a drug dealer. Police get wind of her activity, obtain a search warrant, find 50 grams of cocaine in a shared bathroom closet in separate bags (ready for sale), and arrest her for intent to distribute cocaine. Depending on their mood and your explanation to them, they might also arrest you for possession of cocaine. Again, this could be an example of “constructive possession,” just because you own the house.

 

The laws and legal theories surrounding possession (and constructive possession) vary from state to state and also may depend on the item of question. Common possession charges include drugs, firearms or pornographic materials downloaded to a home computer.

 

Whatever charges the police may bring initially, in the end, a prosecutor must prove to a judge or jury that the person facing legal charges knew the item in question was in his or her possession. If you have questions about the laws pertaining to possession, it’s always wise to consult an attorney.

 

 

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