Actual or Constructive Possession: PA Law Punishes For Both

Actual or Constructive Possession: PA Law Punishes For Both

Client was charged with conspiracy and possession of contraband in a Philadelphia prison after his girlfriend brought marijuana into the prison and tried to pass it to him during a visit.  All charges were dismissed against my client following a preliminary hearing yesterday.

Corrections Officers testified at the preliminary hearing that client was searched prior to going to a visit at the prison with his girlfriend.  According to the COs, client and girlfriend were acting very suspicious by looking around, looking at the COs and not looking at or talking to each other during the visit.  The COs testified that they observed the girlfriend reaching into her dress on numerous occasions.  The COs called their superiors who terminated the visit.  Client was taken back to his housing unit and searched again and nothing was recovered.  COs also searched client’s girlfriend and recovered 26 grams of marijuana from her and arrested her for possession of marijuana along with possession of contraband on prison grounds.  A conviction on the contraband charge carries with it a two year mandatory minimum state sentence.  This harsh mandatory minimum is obviously there to deter anyone from even considering bringing drugs into a prison.

The court ruled that there was not even enough evidence to send the case past the preliminary hearing and onto trial because the Commonwealth failed to prove that my client was ever in possession of the marijuana.   In order to prove a possessory offense in Pennsylvania, whether it be possession of drugs, a gun or any other illegal item, the prosecutor must prove that the defendant was either in actual or constructive possession of the object.  Actual possession is the obvious form of possession where the defendant is either holding the drugs or it is somewhere else on his person, such as in his pants or coat pocket.  It’s what we all think of as being in possession of something.  However, the prosecutor can also prove possession if he can show constructive possession.  Constructive possession is demonstrated when the defendant is not in physical possession of the firearm but she has the conscious dominion and ability to control the firearm.

For example, if police pull you over and as they approach they observe you making furtive movements and therefore order you out of the car.  Upon exiting the vehicle, the police observe the butt of a gun sticking out from under the driver’s seat.  While you were not in actual possession of the gun at the time you came in contact with police, the circumstances prove that you were in constructive possession as it was nearby, there was no one else in the car, the car was registered in your name and your movements demonstrate that you had conscious dominion over the gun and the ability to control it.   Another scenario common to car stops is where police pull someone over and there is a passenger or two in the car and the gun or drugs are not found on anyone but rather found in the glove box, the center console or perhaps under the passenger seat.  In this situation, the police often arrest everyone in the car and the prosecutor can charge and try all of the occupants under a theory that they were in joint constructive possession as they all had conscious dominion and the ability to control the contraband.

Finally, another example is when a drug dealer is selling from a drug stash on the streets.  The law outsmarts the dealer.  The dealer doesn’t want to get caught with too much drugs on him because he’s concerned about losing the product if arrested or perhaps getting robbed.  So, he puts the drugs in a nearby drain pipe or an empty lot.  When drug users approach, the dealer takes money from the user, walks over to the stash to get a packet or two and walks back to deliver the drugs.  The user walks off.  Police are performing a surveillance on the block and watching all of this.  Police stop the buyer and recover a pink packet of crack cocaine.  The dealer makes two or three similar transactions where police see him going to the same stash and selling to users.  After each sale, the buyer is stopped and has pink packets of crack cocaine.  The police then move in to take down the corner and arrest the dealer and they recover money but there are no drugs on him.  They go to the empty lot and recover a baggie with 15 pink packets of crack cocaine.  The police charge the dealer with possession with intent to deliver the drugs sold to the users and what was in the stash.  But, the dealer didn’t have any drugs on him so how can he be charged with possession with intent to deliver?  Because even though he wasn’t in actual possession of the drug stash or even the drugs on the buyers, he was in constructive possession of both as the evidence shows that he had conscious dominion and the ability to control both.  Therefore, even though not in actual possession of the drugs, the defendant will be charged with possession of all the drugs and will be charged with the felony offense of possession with intent to deliver.  Further, if the total weight of the packets is over the necessary threshold for a mandatory minimum, 2 grams for crack cocaine, the prosecutor will seek a state sentence of at least the applicable mandatory minimum.

In my inmate contraband case, the prosecutor tried to argue that my client was in constructive possession of the marijuana brought into the prison by his girlfriend based on his nervous actions, the circumstances, an attempt theory and the conspiracy charge.  However, I was able to argue that because the girlfriend was in actual possession of the drugs, nobody else, including my client could be in constructive possession.  And, you can’t prove a possessory offense under a theory that he attempted to posses the drugs or a conspiracy theory.  The judge begrudgingly agreed and dismissed the charges.  Finally, this is an example of law enforcement jumping the gun (no pun intended) in their investigation.  The Corrections Officers should have let her pass the drugs and then immediately terminated the visit and searched them both.  They would’ve recovered the marijuana from my client and had strong proof that it came from his girlfriend because they saw something passed off and my client was searched before the visit and had nothing on him.  They would have had very strong cases against both for possession of contraband and conspiracy.  Further, they could have charged the girlfriend with possession with intent to deliver as she “delivered” the drugs to my client.  You don’t need to receive money or other compensation in return for the drugs to prove possession with intent to deliver.  The mere handing off to another is delivery.  So, legally, if a bunch of friends are sitting around and passing a joint to each other smoking marijuana, all are technically guilty of possession with intent to deliver.  A jury may see it differently but the law does not.

If you or a loved one has been arrested for possession of narcotics, a firearm or any other possessory offense, contact Brian Fishman for a free consultation so your rights are protected.