Demetrica Todd-Hunter
Attorney At Law provides legal information on a monthly basis.
Twitter: @DemetricaTodd
NOTE: You should alway consult with an attorney for any legal matter that exists. Advice will not be given on this blog, this is a source of information…. Enjoy
I cannot tell you how many times a defendant has been charged with possessing a controlled dangerous substance because they were around someone who had drugs.
For example, client is driving their car, a passenger has drugs on their person, car is involved in a traffic stop, passenger discards the drugs in the car, drugs become visible to a police officer under the ‘plain view’ exception, driver denies ownership, the passenger may or may not deny ownership, and both are charged with possession of the drugs.
Both occupants are charged due to a doctrine known as Constructive Possession. In order to prove constructive possession, the prosecutor must show the defendant had knowledge of the substance and ability to exercise control over the substance.
To prove knowledge, it must be proven that the substance is on or around one’s property. However, this particular knowledge does not have to be actual; it can simply be inferred from incriminating facts or circumstances.
For example, the car is filled with smoke or there is a strong odor of ‘weed’ that would wake the dead. In that case, an inference can be made that you were aware of the illegal substance even if not directly in your possession.
Ability to exercise control means you knowingly have the power and intention, directly or indirectly, to control the substance. Even if you do not have physical possession of the drug, the ability to gain physical possession is often enough.
On many occasions, I have been retained to represent one of multiple passengers in a car, where everyone denies knowledge of a particular drug. All are charged and in most cases, at minimum, the owner of the car is found guilty.
Laws on constructive possession differ by state and are case specific. It’s important to speak with an attorney if you are found in such a situation.
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