Constructive Possession: When is a person actually in possession?

A scenario we frequently encounter with clients is one in which a police officer stops a car occupied by multiple people and drugs are found within the vehicle. Often times all passengers will be charged with possession of drugs, even though the drugs are owned by only one of the occupants.

You may ask yourself: How can it be fairly determined whether or not all passengers were actually in possession?

Constructive Possession Defined...

Having control of an item but not having actual custody is the definiton of constructive possession. In a legal environment it is a theory used to charge an individual with possession, even if there was no hands-on contact.

North Carolina v. Bailey

In a recent decision by the North Carolina Court of Appeals, whether or not an individual could be fairly charged with constructive possession was given a more definitive answer. In the case of North Carolina v. Bailey, a car was stopped after leaving an apartment complex where shots had been fired. Mr. Bailey, a convicted felon, was a passenger in the car; the car was registered to him but at the time of the search it was driven by his girlfriend. Police officers searched his car and found an AK-47 in the backseat.

Mr. Bailey was arrested and, because of the controlling statute that makes it unlawful for a convicted felon to "purchase, own, possess or have custody, care or control of any firearm," he was charged and convicted with Possession of a Firearm by a Convicted Felon.

Mr. Bailey appealed the conviction and the Appellate Court found the following to be true...

  • The rifle was found in a place where he and his girlfriend had equal access to it
  • His fingerprints were not found on the gun, the magazine or the bullets
  • Despite the fact that Mr. Bailey owned the car, he was not driving and therefore exercised no control over the car at the time the rifle was found

Based upon that evidence, the Court ruled that "awareness of the weapon [was] not enough to establish possession" and reversed the trial court's order to deny Mr. Bailey's motion to dismiss the charges against him.

In previous cases, our courts have held that the State is not required to prove actual physical possession of the materials; proof of nonexclusive constructive possession was sufficient. Now, unless a person has exclusive possession of the location where the items in question were found, the State must show other incriminating circumstances before constructive possession may be inferred.

Unfairly Charged of Possession? We can help.

It's easy to see how the case of North Carolina v. Bailey can be applied to the scenario of drug possession described above. The State has to provide more substantial evidence before a conviction of possession can be obtained. The lawyers at Sandman, Finn and Fitzhugh have the knowledge and expertise to develop a successful defense against charges of possession.

Categories:

Get Started with a Free Consultation

    • Please enter your name.
    • This isn't a valid phone number.
      Please enter your phone number.
    • This isn't a valid email address.
      Please enter your email address.
    • Please make a selection.
    • Please enter a message.
Put Us On Your Side