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I've been charged Possession, but I did not have anything on me, how can they charge me? - Actual VS. Constructive Possession of Illegal Controlled Substances

They say that possession is 9/10ths of the law, and in some ways this is very true in criminal proceedings. But there are some good arguments and defenses. Let's run through a couple possible scenarios:

Example A:

Billy is riding in a car with Joey, who is the driver and Tommy who is another passenger. Unbeknownst to Billy, Tommy or Joey have a large bag of marijuana in the center console of the vehicle. Joey is stopped for speeding. The law enforcement officer comes up to the window and after talking with Joey says he smells marijuana and asks to search Joey says "okay" (**NEVER GIVE CONSENT TO SEARCH, EVER). The law enforcement officer inevitably finds the large bag of marijuana and charges Billy, Joey and Tommy with felony possession of schedule VI (marijuana).

Can Billy be found guilty? - Possibly.

According to State v. Ferguson:

Possession of a controlled substance may be actual or constructive. 'A person has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use." State v. Ferguson, 694 S.E.2d 470, 477, 204 N.C.App. 451, 459 (N.C.App.,2010)

This means that in this particular case, Billy did not actually possess the marijuana because it was in the console. So there is no actual possession. But what about constructive possession?

A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing." "Unless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession." As a general rule, " 'mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession." Accordingly, "the mere presence of the defendant in an automobile in which illicit drugs are found does not, without more, constitute sufficient proof of his possession of such drugs."

Thus the state will have to prove beyond a reasonable doubt that Billy did indeed possess those drugs under a theory of constructive possession. We have one quite a few constructive possession cases because the state cannot prove beyond a reasonable doubt as to the actual possession - but beware, the state will use what is known as the "totality of the circumstances" to achieve this goal.

But what we added these facts:

Example B:

Billy is riding in a car with Joey, who is the driver and Tommy who is another passenger. There is a large bag of marijuana in the center console of the vehicle. Joey is stopped for speeding. But this time, Billy has some cigarette rollings papers on him, digital scales, lighter, and $400 in cash. The officer also notices a strong odor of marijuana emanating from Billy's person after he gets all the occupants out of the vehicle.

- In this situation, it is a more difficult of a case for the defense because of all these additional factors. While there is no actual possession, a fact finder could deduce or find beyond a reasonable doubt that Billy constructively possessed the marijuana because it was in his immediate area of control and he had all those other things on his person.

If you have been charged with possession of marijuana, cocaine, heroine, pills or any other illegal controlled substance then you need to talk to an experienced criminal defense attorney. We offer free consultations for criminal clients - call today - 828-246-9360.

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