Many times in cases where possession is a critical element for the State to prove (i.e. drug cases), the prosecution must prove possession through “constructive possession”. This is a term of art developed in the legal system. It essentially means that although you were not actually possessing the illegal object at the time of your arrest (in your pocket or in your hand), you had sufficient opportunity to control or possess the illegal object (in the backseat of the car you are driving or on the coffee table where you just sat your bag of munchies). In short, “constructive possession” relies on the specific facts of your particular situation.

The legal standard for constructive possession goes as follows:

[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it...Constructive possession may be shown by establishing that the drug involved was subjected to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Curry v. State, 249 So.2d 414, 416 (Miss. 1971).

Additionally, in Mississippi, often if the drugs or contraband are found on or in a premises that you own, you face an uphill battle. Pool v. State, 483 So.2d 331 (Miss. 1986). Meaning, if there is a duffel bag of drugs in the back seat of a car you own and are operating, the outlook is not good.

But, let's change that hypothetical a bit. Let's say you are a passenger in a car where drugs are found. Does your status merely as a passenger give you the sufficient capacity to exercise dominion and control over drugs hidden somewhere in the car? Typically, no.

In Spurlock v. State, the driver of a car was pulled over and legally searched resulting in police seizing an amount of drugs from the driver's person. The passenger, Mr. Spurlock, was searched but nothing was found. However, charges were later brought against Mr. Spurlock after drugs were uncovered from under the passenger seat during a routine inventory search. Spurlock was found guilty at trial but the appeals court reversed his conviction. That court focused on the fact that there was no evidence that Spurlock attempted to hide the drugs and his fingerprints were not found on the drugs themselves. Therefore, the court held that Spurlock did not exercise a sufficient amount of control over the contraband. Spurlock v. State, 771 So.2d 1002 (Miss. Ct. App. 2000); 3 MS Prac. Encyclopedia MS Law 23:272. This doesn't mean that all passengers get off scot free.

If, for instance, Mr. Spurlock was found in the passenger seat with cocaine residue on his shirt and fingers or he smelled like a freshly lit joint, a court might reasonably assume that he was aware of the drugs directly beneath him. Or, if officers had seen Mr. Spurlock attempting to conceal something as they were approaching the car, a court might have sustained his conviction. Walker v. State, 2006 WL 3593462 (Miss. Ct. App. 2006) (holding that possession of controlled substances was not against the overwhelming weight of evidence where officer testified he saw defendant attempting to conceal something under his seat following a routine traffic stop).

Essentially, many possession cases boil down to the particular facts of the case. What does this mean? It means when police suspect that they might be dealing with a possession situation, they are going to focus on every detail of the encounter, as they should. Careful and thorough police officers are what citizens should hope for, not something to fear. Unless of course you are carrying drugs in your car, in which case the police shouldn't be faulted for doing their job.

It also means an attorney's ability to “get you off the hook” can be limited by your actions. Part of a defense lawyer's job is to navigate your set of facts through the legal system in order to attain a fair ruling — not to alter or change the facts so that you can game that system.

One takeaway point here is to be upfront at every stage of the process should you be charged with a possession crime. Well-trained police officers can smell a lie from miles away, so lying will only heighten an officer's suspicion (better to simply not talk to them). This leads to an even more thorough, prolonged search and likely some unfavorable testimony at your trial. Also, in light of the way “constructive possession” can change with just a few more facts, it is important to tell your attorney EVERYTHING, so that he or she can tailor their research to your specific set of facts, allowing them to make the best possible argument for your case.

For additional reading on penalties for possession of marijuana see this previous post.