Were you recently arrested and charged with possession of a controlled substance in Nebraska, but you did not have any drugs in your possession? If so, you may (understandably) be wondering how the State can possibly charge you, much less convict you, of possession of a controlled substance. Do not make the mistake of assume that they cannot convict you because the reality is that it is possible to convict you even if you did not have any drugs in your possession at the time of your arrest. A Nebraska drug crime lawyer explains how the State can use the concept of constructive possession to potentially convict you of possession of drugs.
The Burden of Proof
The United States criminal justice system operates under the presumption of innocence. As such, the State, through the prosecutor, has the burden of proving a defendant guilty beyond a reasonable doubt. That burden extends to each and every element of the offense, meaning that the prosecuting attorney must prove each element of the crime beyond a reasonable doubt. Possession of a controlled substance, for example, requires the State to prove that the defendant “possessed” the contraband. Initially, defining “possession” may seem simple enough; however, in legal terms, it is not. The reason for that is that in legal terms there are two types of possession – actual and constructive. Actual possession refers to having physical control of the item in question. Constructive possession is a concept that evolved as a response to situations where law enforcement officers believed a suspect owned an item but the item was not physically found on the suspect.
What Does It Mean to “Possess” Something?
If someone asked you what it means to “possess” something you would likely feel you could easily provide and answer. 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 be much more complicated. 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 the police conduct a search of your person and they find a firearm in a holster on your belt, and you did not have a concealed carry permit, you had immediate and direct physical control over the contraband. That definition of “possession” left room for defendants to argue that they did not possess the contraband in question if it was next to them or otherwise not directly on their person. That, in turn, gave rise to the legal concept of “constructive possession.”
How Does the State Prove Constructive Possession?
The State must still convince a judge or jury that constructive possession applies in the case at hand. To do that, a number of factors are usually taken into consideration. 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?
- If found elsewhere, who owned or had control of the property where the drugs were found?
- How many other people were in the immediate vicinity?
- How long had the defendant been in the vicinity?
- How well hidden was the contraband?
If you have been charged with possession of drugs and your case rests on a constructive possession argument on the part of the State, an experienced drug crime lawyer may be able to rebut the State’s claim of constructive possession.
Contact a Nebraska Drug Crime Attorney at Petersen Law Office
If you have been charged with possession of a controlled substance in Nebraska, consult with an experienced Nebraska drug crime attorney as soon as possible. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Latest posts by Tom Petersen (see all)
- Driving Out of Colorado with Edibles to Nebraska: Is it Legal? - Friday, November 15, 2019
- Can You Mail Edibles to Nebraska? - Friday, November 15, 2019
- Is Hemp Oil Legal in Nebraska? - Friday, November 15, 2019