Constructive Possession of Contraband

The question often arises as to how a criminal defendant can be convicted of possession of contraband, such as an illegal drug, when he/she was not in actual possession. For example, a vehicle is pulled over for a minor traffic offense. The police officer looks through the window and sees a pipe and what looks like a bag of marijuana sitting on the passenger side floor board. Can both driver and passenger be arrested for possession of marijuana? The answer is yes.

Under the legal concept known as construction possession, a defendant can be convicted of possession if it can be shown, through circumstantial and/or direct evidence, that the defendant knew of the presence of the contraband and had the power to exercise dominion and control over it. Multiple defendants can be in constructive possession of contraband at the same time. What will constitute the power to exercise dominion and control is fact specific to each case. For instance, mere proximity to a controlled substance or presence at the scene is insufficient. There must be other evidence to establish a link between the defendant’s presence where the drugs are found and his right to control the drugs. For example, courts have not found constructive possession where the police found a marijuana pipe in the pocket of a coat lying on the front seat of a car in which the defendant was a passenger. The coat belonged to another passenger. The court held that because the owner of the coat was present in the vehicle, and because the coat and its owner were in the front seat while the defendant was in the back seat, there was insufficient evidence to support an inference that the defendant was in constructive possession of the pipe. In another case, constructive possession was found where drugs were found through a search warrant at the house of the defendant’s mother. In the case, the defendant was observed coming and going from his mother's house in the week before his arrest. Upon execution of the search warrant, the police located clothing and shoes belonging to defendant in a bedroom of the house; two automobile rental agreements in defendant's name and, most telling, a leather bag containing money which matched the money used to fund the drug buy. As can be seen, the outcome of each case will depend upon the facts and how these facts are argued to the judge or jury.

Further information on Arizona drug offenses can be found at my website http://www.win-law.com/