The Law of Constructive Possession
Think about this made up example:
We go to a party. We see drugs on the kitchen table but we walk through and head into the living room. The only way we could get to the living room was through the kitchen so anyone walking into the living room had to pass by the kitchen table.
We think “I don’t want to be around those drugs, so I’m staying away from the kitchen.” We don’t touch the drugs or take any of the drugs when offered. The drugs don’t belong to us.
Police are called because of a noise complaint. They come in the kitchen door, see the drugs and arrest everyone in the kitchen. When asked, the people in the kitchen admit that the drugs were there before anybody else showed up and that everyone in the house walked through the kitchen to get into the living room. Police arrest everyone in both the living room and the kitchen and the prosecutor charges everyone with possession of drugs. How can this happen?
By the end of this post, that question will be answered...
Have you or someone you know been arrested because they were simply around something illegal?
The situation can come up where someone is a passenger in a car, the car gets pulled over and the cop finds something illegal inside. In truth, the illegal thing belonged to just one person in the car. Regardless of that, sometimes the cop arrests everyone in the car and sometimes just one person. Why does this happen? What is the law being used in this situation?
Welcome to the law of constructive possession. When I first learned this in law school, I thought I was understanding the material incorrectly. How is it right to allow someone to get busted for something that wasn’t theirs? Well, the answer is constructive possession.
Actual Possession
Let’s start by looking at what most of us think about when we think about possessing something. We think about ACTUAL possession. When we hold something in our hands or have something close to our body (like in a jacket pocket), we are in ACTUAL possession of that item.
We all logically know that we can get in trouble for ACTUAL possession of an item. If we are holding drugs, for example, it is no mystery when we get arrested for drug possession.
Constructive Possession
The law of CONSTRUCTIVE POSSESSION allows us to get in trouble for merely being around a place where someone else has put their drugs. This is not logical and not something about which we would necessarily be aware.
Actual possession and constructive possession are concepts used to arrest/charge people with a possession crime (possession of drugs, possession of firearm by a felon etc).
Again, actual possession is something we understand. Holding drugs means actual possession of those drugs and a drug possession charge makes sense.
Constructive possession is proven through:
- Knowledge that an item is there and…
- Ability to access it.
In the example above, did we have knowledge that the drugs were on the table? Yes, they were in plain sight.
**Constructive possession can also be proven when it was reasonable to have known that the drugs were there….it gets complicated but it allows constructive possession to be proven when a reasonable person should have known it was there. Arguing that we did not see the drugs if we walked within a few feet of them will probably not pass muster.
- Did we have access to the drugs? — Yes, we could physically reach out and touch them.
- Does it matter that we did not OWN the drugs? No — what has to be proven is only that we had access – we could physically touch them.
Fingerprints Don’t Matter
When I was a young lawyer with no wrinkles on my face and lacking the confidence that experience provides, I had clients look at me in disbelief when I told them this law. In this situation, they would ask for me to get fingerprints off the bag that the drugs were in and they were certain that the lack of fingerprints would prove their innocence. That was not the case. They were thinking logically…I can’t blame them. I used to think the same thing.
But why wouldn’t fingerprints matter?
Because the law only requires that you have the ABILITY to access the item – not that you actually did. If you were found ACTUALLY HOLDING the item – then ACTUAL possession could be proved. The fact that CONSTRUCTIVE possession is used is because you were not actually holding the item. That means fingerprints are irrelevant.
Wow! That is awful, right? It allows us to be arrested for someone else’s illegal stuff.
So how do we avoid this?
It is CRUCIAL that we put ourselves only in surroundings where we are pretty certain that no one would have anything illegal and, to do that, that we surround ourselves with people that wouldn’t have anything illegal in any event. This group of people is called a PRO-SOCIAL network and I will explain that in the next post.
Something to Think About
What about the situation where we are in a car with friends, we see nothing illegal and then the car gets pulled over?
We are in the backseat. When the cop throws on the sirens, the guy in the front passenger seat tosses a clear bag of drugs under the passenger seat and it rolls into our backseat floorboard. Everything happens very fast.
As the cop looks into the car with her flashlight, she immediately sees a bag of drugs at our feet. We get arrested. How can we be arrested for this? We didn’t even know the drugs were there until just before the cop flashed the light inside. In the next post, we will examine this situation and learn how to avoid it.