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Whose drugs did the police seize?

Should you face drug trafficking or any other type of drug charges in New York, you undoubtedly realize that if you get convicted, you likely will spend a significant amount of time in jail or prison.

What you may not have consciously thought about, however, is that before the prosecutor can convict you of any alleged drug crime, she must first prove that the drugs in question that the law enforcement officers recovered and seized in fact belonged to you and not someone else. This is where the doctrine of constructive possession could come into play.

Constructive possession

When the prosecutor attempts to convict you of an alleged drug crime, (s)he has the burden of proving to the jury beyond a reasonable doubt that you possessed, owned and/or controlled the drugs that make up the alleged evidence against you. As FindLaw explains, (s)he generally has two ways to do this: by proving actual possession or by proving constructive possession.

As you might suppose, actual possession is fairly easy and simple to prove. All the prosecutor needs is the credible testimony of a law enforcement officer that (s)he seized the drugs from somewhere on your person, such as in one of your jacket or pants pockets.

Constructive possession, on the other hand, poses a significantly greater challenge to both the prosecutor and the jury. Here no officer can testify that (s)he found the drugs hidden somewhere on your person. Instead, the best (s)he can testify to are the circumstances surrounding his or her recovery of the drugs. If the jury finds the testimony compelling enough, they can make the reasonable inference that you possessed, owned or controlled the drugs and consequently convict you.

Illustrative fact situations

Suppose, for example, an officer testifies to the following four facts:

  1. That (s)he flagged you over for a traffic stop
  2. That you drove the car and had three passengers with you
  3. That (s)he searched your car legally
  4. That you gave him or her the key to your locked console box and that is where (s)he discovered the drugs

Under these circumstances, the jury can easily infer that you owned the drugs since you controlled the access to their hiding place.

Now suppose that the officer testifies to the same first three facts, but now must admit that (s)he found the drugs in your unlocked console. Under these circumstances, the jury cannot determine beyond a reasonable doubt who owned the drugs. All four of you in the car had equal access to your unlocked console and equal opportunity to place the drugs there. Consequently, you go free.

This is educational information and not intended to provide legal advice.

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