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"That's not mine!" The Case Against Constructive Possession


A conviction for possession of illegal drugs has serious consequences that can end in the loss of your job, disruption in your family life, the accumulation of steep court costs and fines, and a potential jail sentence. Many people have the mistaken impression that in order to be charged and convicted of possession, that you must actually have drugs on your person. However, this is untrue. Possession of drugs can be deemed to be actual or constructive. Constructive possession is defined by a quality known as conscious dominion. Conscious dominion means that person had both knowledge of the existence/location of the drugs, and the intent to exercise control over them.

A classic scenario that can be used to demonstrate constructive possession of drugs is the "drugs on the table" scenario. You're at a party, there's a group of people sitting around a table, some of them taking turns snorting cocaine. Suddenly, the police burst in, and now everyone sitting at the table finds themselves facing possession charges based on a theory of constructive possession. Now some people sitting at that table may not have been partaking, while others were. However when the police start asking questions, everyone denies using the cocaine or having anything to do with it. In scenarios like these, it is an uphill battle with a jury to convince them that you as a person at that table had no intent to use the drugs on the table. In a case like this all of the people present may be charged with possession on a theory of constructive possession. Constructive possession can be charged jointly, meaning that more than one person can be charged with possession of the same substance.

There are scenarios where someone may be in the presence of drugs but not be in constructive possession of them. The Pennsylvania Supreme Court has held that mere presence on the scene where drugs are found is not enough to establish possession. For example, if you share an apartment with a roommate and drugs are found in your roommates bedroom, you have a good case to argue that you did not have conscious dominion of those drugs. The key in these cases is access and intent to control. Whether conscious dominion exists is determined under a "totality of the circumstances" test. Factors in this test include, the proximity of the drugs to the defendant and his belongings, whether others had access to the area in question, inculpatory statements, and the contemporaneous sale, possession or use of the drugs, as well as the presence of large amounts of cash.

If you have been charged with a drug offense it is important you retain an attorney to dispute the charges and find the most favorable resolution to your case. A qualified attorney can help you have the charges dismissed, potentially enter you into alternative programs such ARD, Bootcamp, SIP, or agreements involving drug treatment. A consultation with Attorney Walker is just a phone call away at 412-532-6805. Call today!

Attorney Frank Walker of Frank Walker Law is a National Top 100 Criminal Defense Lawyer and Personal Injury Attorney with offices in Pittsburgh Pennsylvania and Morgantown West Virginia. Attorney Walker is also a member of the National College for DUI Defense and qualified as a Pennsylvania Death Penalty Defense Attorney.

If you or someone you love are facing criminal charges or seriously injured in an accident in WV or PA, contact Attorney Frank Walker immediately at 412-532-6805 24 hours a day, 7 days a week for aggressive and experienced Criminal Defense or Representation in a Civil Case.