In order to be convicted of any criminal offense the State of Nebraska must prove each and every element of the offense beyond a reasonable doubt. For many offenses, one of those elements is “possession” of some type of contraband. When “possession” is an element the prosecutor can prove that element by proving that you had actual or constructive possession of the item in question. What is constructive possession, you may be wondering. Knowing the answer to that question is critical if you have been charged with a criminal offense that involves possession as an element.
In Nebraska, like other states, it is often illegal to “possess” something. For example, Nebraska Revised Statute 28-416(1) makes it illegal to possess, with intent to distribute, a controlled substance, reading as follows:
“Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance.” (Emphasis added)
To convict a defendant of possession with intent to distribute, the prosecutor must prove that the defendant possessed the controlled substance. The prosecutor may prove that the defendant actually or constructively possessed the controlled substance. Actual possession occurs when a defendant has direct, physical control over the item of contraband. Because offenders are often smart enough to avoid carrying drugs, or other illegal items, directly on their person, the law came up with the concept of “constructive possession.”
Although there is no universally accepted definition for “constructive possession”, a common definition is “the intent to maintain dominion and control over the contraband.” Using that definition, the prosecutor must essentially prove that the defendant had control over the drugs and that he/she intended to retain that control. Circumstantial evidence is typically used to prove constructive possession. For example, if the vehicle where the drugs were found was registered to the defendant that may be used to argue that the defendant had “dominion and control” over the contraband. Likewise, items such as scales, baggies, and ledgers found on the defendant or with the defendant’s possessions may also be used to argue that the defendant had constructive possession over the controlled substance.
Cases where the State of Nebraska must rely on constructive possession for a conviction are often cases in which the defendant has a real chance at a viable defense. If you have been charged with a criminal offense that involves constructive possession in Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.