Understanding constructive possession

On Behalf of Sanchez Burke, LLC

When you face some kind of drug charge in Louisiana, you likely become quite concerned, as well you should be. Depending on exactly what alleged drug crime the prosecutor charges you with, you could face a substantial prison term if convicted. Then too, depending on the quantity of drugs that law enforcement officers allegedly recovered from you, you could face multiple charges.

When you hire a criminal defense attorney to represent you, be sure to tell him or her the exact circumstances of the alleged drug recovery and the exact circumstances surrounding your arrest. Why? Because it is possible that the drugs the officers recovered may not have been yours, even if they found them in your home, your car, or some other place you frequent.

Proving ownership

The prosecutor cannot convict you of any drug crime unless and until (s)he proves to the jury that you possessed, owned or controlled the drugs the officers recovered. (S)he has two ways to do this: by proving actual possession or by proving constructive possession.

Actual possession is relatively easy to prove. If an officer credibly testifies at trial that (s)he found the drugs somewhere on your person, such as in one of your coat pockets, the jury likely will find this testimony compelling enough to believe beyond a reasonable doubt that you owned the drugs. Consequently, they convict you.

But what if that is not what happened? What if the officer can testify only that (s)he found the drugs in your home or in your car? Then, depending on the exact circumstances surrounding that drug recovery, the prosecutor must prove you owned or controlled them via constructive possession.

Illustrative constructive possession examples

To better understand constructive possession and how this doctrine can work to your advantage, consider the following four facts to which the officer testifies:

  1. (S)he pulled you over for an alleged traffic violation while you were driving your car.
  2. You had three passengers in your car at the time.
  3. (S)he legally searched your car after you gave him or her permission to do so.
  4. (S)he asked you for the key to your locked console, you gave it to him or her, and (s)he found illegal drugs hidden in it.

When the jury hears this testimony, they can reasonably infer that since you owned the car and had the only key to its locked console, you controlled and therefore constructively owned the drugs. They likely convict you.

But now, assume the officer testifies to the same first three facts, but has to change his or her testimony with regard to the fourth. Instead of finding the illegal drugs hidden in your car’s locked console, (s)he finds them hidden in your car’s unlocked console. Under these circumstances, it becomes a whole different ballgame.

Remember, you had three passengers in your car. All of them had just as much access to your car’s unlocked console as you did. All of them had just as much opportunity as you to hide the drugs there. Now what can the jury do? They cannot reasonably infer which of the four of you put the drugs in your unlocked console. Consequently, they cannot convict you or anyone else of owning the drugs in question unless one of you admits to it. Obviously, none of you need to do this.

End of trial, end of story. Either the jury must acquit you or, more likely, the prosecutor must drop all charges against you. Even more likely, assuming you told your attorney early on about these circumstances of the drug recovery and your arrest, (s)he will convince the prosecutor to drop the charges against you long before your case ever goes to trial.

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