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A common issue we come across at Ludlum Law Firm is where a client has been charged with possession of drugs or a firearm and they tell us that the illegal contraband did not belong to them. Usually this happens where a car is pulled over with multiple passengers and drugs or a firearm is discovered hidden somewhere in the vehicle, but no one claims responsibility for it.  A case like this usually involves the issue of possession and more precisely, the issue of constructive possession.

To be found guilty of possession of illegal drugs or firearm, one key element the State must prove is possession. Possession can either be actual possession or constructive possession.  Actual possession is when the illegal contraband is found on the person, they are aware of its presence, and they have the power and intent to control its disposition (State v. Loftis, 185 N.C. App 190, 2007). Constructive possession is more difficult to prove and the State must show that while someone does not actually possess the illegal contraband, they have the intent and the ability to control dominion over it. (State v. Miller, 363 N.C. 96, 2009).

In the scenario discussed above where a car is pulled over with multiple passengers and marijuana is found in the back floorboard, no one has actual possession, but at least one person and maybe more, could have constructive possession. But in a scenario like this, just being in the car where marijuana is present is not enough to prove constructive possession when there is more than one occupant in the vehicle. The State has to show other incriminating circumstances to establish that any one passenger has constructive possession. “Other incriminating circumstances” can be different in every case, but there are common factors to consider when trying to determine if the State can prove constructive possession such as:

  • how close the illegal contraband was located to the defendant
  • whether or not the defendant owned the vehicle/home that the illegal contraband was found
  • whether the defendant had the ability to physically place the illegal contraband where it was found
  • whether other items were found with the illegal contraband that would suggest that it belonged to a specific person

The fact is that often times constructive possession becomes very technical, fact specific, and hard to prove. In many cases if an officer cannot determine the true owner, they will charge everyone. If you find yourself charged with possession of illegal contraband, you need an attorney that has the knowledge and experience to assess your case and to be sure that your best interests are pursued. Ludlum Law Firm has over 45 years of combined experience in criminal matters and pride themselves in providing the best representation that their clients deserve. If you have been charged with a crime, please give us a call and let us put our knowledge and expertise to work for you.