Imagine landing in jail, charged with possession of a controlled substance or some other contraband, having never even touched the contraband. Imagine further that you are not the only person charged with possession of that same contraband. If you are like the average person you are likely wondering how that is possible. How can more than one person be charged with possession of the same item at the same time? Moreover, how can anyone be charged with possession of something they never even touched? The answer lies in the legal concept known as “constructive possession” as explained by a Nebraska drug lawyer.
Possession as an Element of a Criminal Statute
Many criminal statutes include “possession” as an element of the crime. This is particularly true with drug-related criminal offenses. Take, for example, Nebraska Revised Statute 28-416(11) which governs the possession of more than one ounce but less than one pound of marijuana. That statute reads as follows:
“Any person knowingly or intentionally possessing marijuana weighing more than one ounce but not more than one pound shall be guilty of a Class III misdemeanor.”
The statute appears to be fairly straightforward. To convict a defendant of possession of marijuana using the statute the prosecuting attorney would need to prove, beyond a reasonable doubt, that the defendant:
- Knowingly or intentionally
- Marijuana weighing between one ounce and one pound
Looking at those elements, you might think that the first one – knowingly or intentionally – would be the most difficult to prove; however, that is not always the case. Often, it is the element of “possession” that presents a problem for the State – and that can be the key to a not guilty verdict for the defense.
What Does It Mean to “Possess” Something?
In everyday language, the concept of “possession” isn’t particularly complicated. In legal terms, however, the concept of possession has been heavily litigated for decades. Originally, the law used the traditional definition of the word “possession” when possession was an element of a crime. That required the State to prove that a defendant had “immediate and direct physical control over the contraband” to obtain a conviction. For example, the State could only convict someone of possession of a controlled substance if the controlled substance was found on the defendant’s person. As you might well imagine, defense attorneys routinely argued that any contraband not found directly on a defendant’s person was not in the defendant’s possession, and therefore the defendant could not be convicted beyond a reasonable doubt of the crime in question.
The Evolution of Constructive Possession
The concept of constructive possession evolved as an answer to frustrated law enforcement officers and prosecuting attorneys who could not convict defendants that they believed were guilty but slipped through because of the strict definition of the term “possession.” Prior to the rise of constructive possession, all a suspect has to do to avoid a slam dunk conviction was to ditch the contraband before the law enforcement officer conducted a search of his/her person. Sometimes, that meant nothing more than dropping a bag of cocaine on the sidewalk before the officer managed to stop the suspect for the search or making sure drugs were transported under the seat of a vehicle instead of on your person.
Defining Constructive Possession
The precise definition of “constructive possession” has been litigated for decades; however, the concept is simple enough to understand. Constructive possession applies when an item belongs to someone but is not found directly on their person. To date, the most widely accepted definition of constructive possession 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.” When the prosecution is relying on a constructive possession argument, it offers the defense a chance to avoid a conviction because the State must convince the judge or jury that the defendant possessed the contraband despite the fact that the contraband was not found directly on the defendant’s person. Some factors that are often considered relevant when determining whether a defendant had constructive possession of a controlled substance (or other contraband) 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?
Contact an Omaha Drug Lawyer at Petersen Law Office
If you have been charged with a criminal offense that requires the State to prove constructive possession in Nebraska, consult with an experienced Nebraska criminal defense lawyer at Petersen Law Office as soon as possible to discuss your legal options. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
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