July 2011 | Vol. 6, No. 1

That Ain't Mine: Taking Possession of Your Constructive Possession Case

by H. Lee Harrell
Deputy Commonwealth’s Attorney
Wythe County, Virginia
E-mail:  hlharrell@wytheco.org

            Constructive Possession.  It is unlikely that there are other areas of the law that lead to more strife than this concept.  It creates heartburn between prosecutors and the police, between defense attorneys and their clients, and it certainly vexes even the most competent of our judges.  Why so much trouble?  Why so many appellate cases Why so many different outcomes?

            Rarely a month goes by in the Commonwealth of Virginia where either the Court of Appeals or the Supreme Court does not rule on a drug or gun case involving the concept of constructive possession.   January 25, 2011, saw a 45-page published opinion from the Court of Appeals on the subject.1  Although that length is not unheard of for a Court of Appeals opinion, it is uncommon.  In the Ervin case, the majority and the dissent struggle back and forth with the facts of the case trying to shoehorn them into the messy jurisprudence of constructive possession.

            In a criminal prosecution for unlawful possession (or even distribution and manufacturing) of contraband, the Commonwealth may prove the case by showing either actual or constructive possession.2  If the Commonwealth’s case is one of constructive--rather than actual—possession, the following must be proved beyond a reasonable doubt:

  1. That defendant was aware of the presence and character of the contraband
  2. That the contraband was subject to defendant’s dominion and control.3

            By its very nature a constructive possession case is likely to be circumstantial, and although circumstantial evidence can be just as competent as direct evidence, it rarely packs the same punch.  What judge or jury is going to have a problem convicting someone for cocaine found in their pocket?  That certainty in considerably diminished when the evidence shows a packet of cocaine found in the center console of a rental vehicle shared by three people.

            The first prong of constructive possession is usually the most difficult to prove.  Having to prove to the requisite level what the defendant knew about an item not in his actual possession is challenging.  Constructive possession may be established by “evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and the character of the substance and that it was subject to his dominion and control.”[4]  The appellate courts of Virginia have been clear that proximity alone (including occupancy of a vehicle) cannot result in a conviction under a theory of constructive possession; there must be more.[5]  “A defendant’s knowledge of the presence and character of a drug may be shown by evidence of the acts, statements, or conduct of the accused.”[6]  Additionally, the prosecution can rely on any other facts or circumstances tending to demonstrate the accused’s guilty knowledge of the drug.[7]  

            One example of circumstances that is particularly useful in constructive possession of marijuana cases, is the distinctive drug odor.[8]  It is hard to deny knowledge when you are enveloped in a haze of dope smoke.  A defendant’s statements, furtive movements, nervousness or flight can also be used to develop this prong.  When, however, the circumstances do not render such telltale signs that the defendant knew the nature and character of the contraband, the Commonwealth’s case can fall on this first prong.  Imagine the disappointment when an interdiction stop results in a large cache of drugs being discovered (and a pile of forfeitable assets as well), but the Commonwealth cannot prove that the charged occupants of the vehicle knew the nature and character of what was discovered in that glove box!

            The second prong of a successful constructive possession case is often easier for the prosecution to prove but can occasionally become an insurmountable hurdle.  The Commonwealth must prove that the defendant exercised dominion and control over the contraband.  At first blush that may seem difficult where several people are discovered near drugs or guns.  It is, however, well settled in the law that several people can jointly possess one item.[9]  Thus, if the facts and circumstances suffice, a carload of people could be convicted of possessing a single bag of cocaine found in the center console.  The law also provides further relief in the vehicle setting, known as the “common enterprise theory”.  “[W]hen drugs are suspected in a vehicle and the suspicion is not readily attributable to any particular person in the vehicle, it is reasonable to conclude that all occupants of the vehicle are suspect. They are in the restricted space of the vehicle presumably by choice and presumably on a common mission.”[10]  The law also recognizes that someone who is in possession of the implements of dominion and control (such as a car key that also opens a glove box) has the requisite control over the discovered contraband.[11]  Courts also recognize that personal possessions (identifying documents, clothing, bills, etc.) play a strong role in showing ownership.

            Another oft relied upon axiom in the world of constructive possession is that folks just don’t abandon their drugs.  Virginia’s appellate court’s have recognized this time and time again when a defendant tries to argue that maybe somebody just dropped those drugs or maybe the last person who rented this car left that cocaine in the console:  “[o]ur cases recognize that drugs are a commodity of significant value, unlikely to be abandoned or carelessly left in an area."[12]  Dovetailing that with the common enterprise theory gives the prosecution the ability to counter some of the common denials that defendants use in court.

            The one certainty to take away from any discussion about constructive possession is that the development of as many facts and circumstances implicating a suspect is crucial for success.  Although both the Supreme Court of Virginia and the Virginia Court of Appeals will uphold lower court convictions for constructive possession cases, they approach them with a jaundiced eye.  As well they should.  The standard for a felony conviction of someone who does not actually possess something should be high in order to protect that truly innocent person from bad circumstances.  Having abundant (albeit circumstantial) evidence tying your accused to the contraband will ensure not only a conviction in the circuit court but also that the conviction will withstand appellate scrutiny.  Here are some practical considerations:

            Take copious notes.  A thorough incident report is vital in a constructive possession case.  Things that may not seem important at the scene may be quite useful later.

            The defendant’s statements and behavior are often the keys to establishing her knowledge about the contraband.  Furtive movements, evasive answers, flight, deception and contradicting statements may be linchpins during the prosecution of your case.

            The exact location of the contraband is critical.  Take photographs.  A defendant who says he had no idea that the drugs were located just under the seat he was sitting in will have a difficult time if you produce a photograph showing that they were obviously visible.

            Make detailed observations about any odors.  Remember that there may be an important difference between burnt marijuana and fresh marijuana.

            Look for the implements (or admissions) of dominion and control, such as keys, personal papers, initials, etc.

            Keep in mind that where several individuals are accused of constructive possession it may become necessary to “flip” one of them in order to strengthen the possession case against the others.  Don’t let disappointment over one “sweetheart deal” cause you to lose the case against the remaining defendants.

[1] Ervin v. Commonwealth, Va. App. # 0861-09-1 (Jan. 25, 2011).

[2] See, Barlow v. Commonwealth, 26 Va. App. 421 (1998).

[3] Wilson v. Commonwealth, 46 Va. App. 408 (2005).

[4] Powers v. Commonwealth, 227 Va. 474, 476, (1989).

[5] See, Coward v. Commonwealth, 48 Va. App. 653 (2006).

[6] Garland v. Commonwealth, 225 Va. 182 at 184 (1983).

[7] See, Williams v. Commonwealth, 42 Va. App. 723 (2004).

[8] See, Ervin v. Commonwealth, Va. App. # 0861-09-1 (Jan. 25, 2011).

[9] See, Carter v. Commonwealth, 209 Va. 317 (1968).

[10] United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998).

[11] See, Ervin v. Commonwealth, Va. App. # 0861-09-1 (Jan. 25, 2011).

[12] Dodd v. Commonwealth, 50 Va. App. 301 (2007).

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.