Constructive Possession: Is the Contraband Really Yours?

December 22, 2020

By Jill K. Sanders, Esq.

You can be charged with a variety of crimes for possessing illegal contraband. Namely, this includes drugs, weapons, and stolen property. But what happens if you are not physically in possession of the contraband at the time of your arrest? Or what if you’re in a home or a car where illegal items are found? In New York, you can be convicted under the theory of constructive possession.


The Basics of Constructive Possession

To be charged with a crime of possession, you must knowingly possess the item. According to New York law, a person acts knowingly when he is aware that his conduct is of such nature or that such circumstance exists. And possession means to have physical possession or otherwise to exercise dominion or control over tangible property.

In contrast, constructive possession requires a different showing. For this, there must be evidence that the defendant exercised “dominion or control” over the contraband. Specifically, there must be a sufficient level of control over the area where contraband is found or over the person from whom the contraband is seized.

Additionally, there can be more than one individual with property in his constructive possession. For instance, if a gun is found in a car, all the occupants of the car can in some cases be charged with possessing that weapon. This is often referred to as the automobile presumption.

However, if the area is frequented by many people, that can cause legal issues. Take for example the living room in a house where six people live. Do all six people get charged with possession of drugs found in the living room? What if the police only have evidence showing that one person living there is a drug dealer? If the prosecution can show they each had dominion or control over the living room where the drugs were found, all six can be charged.


Case Study on Constructive Possession

Just this month, the Court of Appeals considered a case of constructive possession. In People v. D.L., the defendant was charged with illegally possessing a gun. The prosecution alleged the contraband was found in a bedroom over which the defendant had dominion and control.

Yet the defendant argued he was a temporary guest in the apartment, and that he had no prior knowledge of the gun. While in the apartment on the day of his arrest, he was shot in the neck. He ran into a back bedroom where he said he saw a gun in an open drawer. The defendant’s blood was found in the back bedroom, as well a piece of mail with his name on it. He said he then found a towel to hold to his gunshot wound and ran out of the apartment. The defendant’s DNA was found on the gun, but it was unknown if this was from blood from his wound.

At trial, the jury convicted the defendant of possessing the gun found in the drawer. Yet the trial judge refused to give an instruction on whether the defendant’s constructive possession was voluntary, as he was only in the back bedroom for a fleeting moment. The Court of Appeals reversed based on this error, and the matter was remanded for a new trial.