Possession is understood as being in immediate control of an object. In criminal law, there are two types of possession – actual and constructive.
Actual possession is what most people think of, which is having drugs in one’s pocket or purse. However, people can be prosecuted based on constructive possession of narcotics as well.
Definition of Constructive Possession
Constructive possession is a charge brought upon a defendant when law enforcement cannot charge with a direct possession (e.g., the defendant is a passenger in a vehicle with drugs in it that do not belong to her).
To be found guilty of constructive possession of narcotics under current Pennsylvania law, an individual must have knowledge of the presence of narcotics and must have the ability to access them. That means simply having access to the drugs in the home or area is not enough – the defendant must have knowledge that the drugs are there in order to be guilty of constructive possession.
Normally, cases of constructive possession involve narcotics or illegal guns found in homes or cars.
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Examples of Constructive Possession
If someone’s roommate has drugs in her closet and the police find them, they may try to bring charges against both roommates – including the one who didn’t have drugs in her room. In this example, the defendant could be found either guilty or not guilty depending on the circumstances.
For example, if the defendant knew that her roommate had narcotics in her closet, but she was unable to access them because it was in a safe or her roommate kept her door locked, then it would be difficult for the state to prove that the defendant had constructive possession of the drugs.
On the other hand, if the defendant knew that his roommate had drugs in her closet because she put them there and there were no locks or safes preventing her from accessing the drugs, then the state might be able to convict the defendant of constructive possession.
In a 2011 case, People v. McIntyre, 2011 IL App (2d) 100889 (Dec 14, 2011), a defendant rode in a car with his friend to a man’s house. The defendant thought his friend was going to fight the man at his home.
When they arrived, instead of fighting, the defendant’s friend pulled out a gun and began firing. The state arrested the defendant and charged him with constructive possession.
The court, however, found the defendant not guilty because even though he was aware of the presence of a gun (since he saw his friend fire it), there was no evidence that the defendant had any control over the gun.
Other Factors of Constructive Possession
Constructive possession can be brought against two defendants, even if there are only enough drugs for single use (e.g. a single pill).
For example, if a couple is taking a road trip, and they pack their belongings, including the pill, in the same suitcase and store the suitcase in the trunk, it may be assumed that both defendants had constructive possession of the pill.
But, if the couple has two suitcases and the husband is unaware of a pill in the wife’s suitcase, then perhaps only the wife would be found guilty of possession.
Constructive Possession Can Be Fought
A defendant who is arrested and charged with constructive possession is not automatically guilty just because there were drugs in the defendant’s vicinity. To find the defendant guilty, the state must prove the defendant knew the drugs were present and the defendant was able to access the drugs.
If the state cannot prove those elements, the defendant must be found not guilty.
In addition, the state must have had a valid reason to search the defendant and her surrounding area.
For example, an officer must have reasonable suspicion/ probable cause to stop and search a vehicle. Probable cause means the officer must have observed the driver breaking a traffic law, observed a problem with the vehicle (such as a broken tail light), etc.
If there was no probable cause, the officer had no right to pull over the vehicle and any charges resulting from the stop must be dismissed. This applies to invalid searches of homes, businesses, and other areas.
Call Us Today
If you have been arrested for constructive possession of narcotics or a firearm, contact the Law Offices of M.J. Snyder today. Our experienced legal team is ready to fight on your behalf. Call us at 215-515-3360 for your free consultation!