Constructive Possession in North Carolina Criminal Cases

Posted by Sean Cecil | Jan 19, 2019 | 3 Comments

Criminal charges for possession of contraband present some of the most interesting issues in criminal defense. In some cases, well plead and argued motion can lead to suppression of evidence. Motions to suppress evidence deal with legal issues. Possession charges can also be defended on the facts- challenging the state's ability to prove, beyond a reasonable doubt, that the accused actually possessed the contraband. Unless the contraband is found on a defendant's person, the prosecution must rely upon a theory of "constructive" possession- meaning that although the illegal item was not found on the defendant's person, they exerted control over the item such that they can be said to have possessed it. These situations may arise when law enforcement finds contraband in the area around the defendant, such as a vehicle. An innocent person may be caught up in serious criminal charges by unwittingly being in the wrong place at the wrong time. 

Fortunately, like in all criminal cases, the state has to prove each of the elements of possession beyond any "reasonable doubt". This often provides wiggle room for the defense of charges that rely upon a theory of constructive possession. According to case law, 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." The pattern jury instruction informs a jury: 

"A person has constructive possession of [contraband] if the person does not have it on the person but is aware of its presence, and has (either alone or with others), both the power and intent to control its disposition or use. A person's awareness of the presence of the [contraband] and the person's power and intent to control its disposition or use may be shown by direct evidence or may be inferred from the circumstances."

Although the appellate courts have often upheld jury convictions based upon seemingly flimsy factual evidence of constructive possession, there is a lot of room for quality advocacy in these cases- avoiding any appeal by obtaining a verdict of "not guilty." In evaluating a constructive possession case, the jury must consider the totality of circumstances established in evidence during a trial. A creative criminal defense lawyer will seek to establish the existence of circumstances that create reasonable doubt regarding either the defendant's knowledge of the presence of the contraband or their ability to exercise control over it. 

Prosecutors, seeing the potential weakness in a case, will sometimes offer misdemeanor resolutions to felony indictments. A misdemeanor can be very hard to pass up and should be given thorough consideration. However, for a defendant who properly weighs the pros and cons, the decision to refuse a misdemeanor (which is usually accompanied by supervised probation, at least in Wake County criminal courts) can pay off. 

Our Raleigh criminal defense lawyers have experience defending criminal charges pursued on a theory of "constructive possession" of drugs and/or guns. We provide free consultations for Wake County criminal charges both felony and misdemeanor. Give us a call or use the contact form in our sidebar to set up a teleconference or in person consultation at our downtown Raleigh office. 

About the Author

Sean Cecil

Sean is an experienced advocate dedicated to justice for all people. He believes that individual human rights outweigh the freedom to make an easy dollar.


John Faulk Reply

Posted May 28, 2022 at 17:05:31

I have a pending charge of felony possession of Methamphetamine, however I live with my sister and her son , and when they raided us , the found the meth in my nephews safe , which I had no access to nor did I know he even had it , I was also charged with suboxone which I have a prescription for , I am representing myself my next court date is for arraignment or they will offer a plea deal , but I am gonna ask for dismissal insufficient evidence , and argue that I had no access or control or domain.

Sean Cecil Reply

Posted May 29, 2022 at 09:28:42

Best of luck with that. If your jurisdiction has “probable cause” hearings (unlike Wake County, which just takes any case where PC is contested to a grand jury) you may have a chance of succeeding. I would think that to pin that on you they would probably need cooperating testimony.

Sean Cecil Reply

Posted Sep 01, 2022 at 06:49:12

I hope this situation resolved favorably for you. I don’t always receive notice of comments to these articles, so if you were trying to reach me it’s best to give me a call or submit the contact form! Meth charges are serious- under state law you can be facing mandatory minimums for as little as an ounce; federal criminal consequences can be even worse! I have experience defending meth and/or Ice charges in state and federal court and am available for consultation or representation.

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