Have you been arrested and charged with possession of a controlled substance in the State of Nebraska? If so, and the drugs in question were not actually found in your possession, you may be under the impression that the prosecutor cannot possibly convict you of the charges against you. Unfortunately, that is not necessarily the case. The State may be able to secure a conviction using the theory of “constructive possession.” Because every case involves very specific facts and circumstances, you need to consult with an experienced criminal defense attorney to find out what role constructive possession may play in your prosecution. In the meantime, however, a Nebraska drug crime attorney explains the basic concept of constructive possession and how it is often used in a drug related criminal prosecution.
The Law – Nebraska’s Controlled Substance Statute
In the State of Nebraska, Nebraska Revised Statute 28-416 governs many of the criminal offenses involving a controlled substance. The portion of that statute that addresses the possession of a controlled substance, except marijuana, reads as follows:
(3) A person knowingly or intentionally possessing a controlled substance, except marijuana or any substance containing a quantifiable amount of the substances, chemicals, or compounds described, defined, or delineated in subdivision (c)(25) of Schedule I of section 28-405, unless such substance was obtained directly or pursuant to a medical order issued by a practitioner authorized to prescribe while acting in the course of his or her professional practice, or except as otherwise authorized by the act, shall be guilty of a Class IV felony.
What Does “Possess” Mean?
As used in everyday language, the word “possess” is fairly easy for most people to define. In legal terminology, however, the concept of “possession” can get tricky. At one time, the law only recognized the traditional definition of the word “possession.” In other words, if the law prohibited the “possession” of a controlled substance, it meant that a defendant must have been found in actual possession of the contraband. Actual possession being defined as having immediate and direct physical control over the contraband. For example, if you are stopped by the police and they find a baggie of cocaine in your pants pocket, you clearly had immediate and direct physical control over the contraband. Criminals, however, got smart and started keeping contraband close, but not directly on their person. This created a problem for law enforcement and prosecutors. It also gave birth to the legal concept of “constructive possession.”
Defining Constructive Possession
Constructive possession is intended to cover situations wherein the police believe contraband belongs to an individual but was not found on the individual’s person. Defining the term, and explaining when and how it applies, has been an ongoing challenge for law enforcement officers, attorneys, legal scholars, and even judges. The Supreme Court of the United States has even said “there is no word more ambiguous in its meaning than possession” (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). That ambiguity can work for, or against, a defendant. Despite the fact that a universally accepted definition for “constructive possession” remains elusive, the most widely accepted definition requires the State to prove that the defendant had “knowledge of the item in question and had the intent to maintain dominion and control over the item.”
Factors that are often considered relevant when determining whether a defendant had constructive possession of a controlled substance include:
- How close was the contraband to the defendant?
- If found in a vehicle, who owned the vehicle?
- How many other people were in the immediate vicinity?
- How long had the defendant been in the vicinity?
- How well was the contraband hidden?
If your case involves a constructive possession argument on the part of the prosecution, you should consult with an experienced drug crime attorney right away to discuss how strong their case is against you. Because constructive possession is never as strong an argument as actual possession, it often provides an avenue for a winning defense that could prevent you from being convicted.
Contact a Nebraska Drug Crime Attorney at Petersen Law Office
If you have been charged with a drug related criminal offense in the State of Nebraska, it is in your best interest to consult with an experienced Nebraska drug defense attorney right away to discuss possible defenses. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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