That's Not My Weed, Officer: A Guide to Constructive Possession

Brennan Aberle, Cate Caperton, and Anna Marquardt

One of the most common reasons that people confess to possession of drugs or guns after they are found in a search is because they figure they have already lost their case. People can’t help themselves but admit responsibility as the blue lights are flashing and the officer is dangling your stash of 5 grams of the dankest o.g. kush that you thought you had cleverly hidden under your seat so quickly in front of your face. Maybe people think that they are going to get off easy if they just confess, but there is no reason to think that that is ever true. You are just going to end up with an attorney who is angry with you for consenting to searches and confessing to crimes.

Well I am here to tell you that all hope is not lost, even as the officer follows his nose all the way to your poorly concealed prescription bottle filled with what your dealer, Kyle, assures you is “a totally legit sativa-blend Maui Wowie from Hawaii, bro.” So are you guilty of possessing marijuana in this circumstance? That depends on whether you are “possessing” it. You are guilty of possessing something unlawful if you are “actually” possessing it, or “constructively” possessing it. These are legal terms of art and here is what they mean:

Actual Possession versus Constructive Possession

From the North Carolina Pattern Jury Instruction 104.41, “Possession of a(n) [substance] [article] may be either actual or constructive. A person has actual possession of a(n) [substance] [article] if the person has it on the person, is aware of its presence, and (either alone or together with others), has both the power and intent to control its disposition or use. A person has constructive possession of a(n) [substance] [article] if the person does not have it on the person but is aware of its presence, and has (either alone or together with others), both the power and intent to control its disposition or use. A person's awareness of the presence of the [substance] [article] and the person’s power and intent to control its disposition or use may be shown by direct evidence or may be inferred from the circumstances.”

Actual possession requires the object be on the person, that they be aware of its presence, and they have both the power and intent to control the object. Here is an easy example: You are in actual possession of the shoes on your feet. Why? They are on you. You know they are there. You have the power and intent to control them. This applies to items that are also “about your person” such as the bag at your feet or the purse on your shoulder.

You may have heard of the famous “not-my-pants defense.” The scenario goes like this: an officer searches your pockets and find drugs. You tell the officer that you didn’t know those drugs were there because you must have accidentally put on someone else’s pants. I’ve never personally tried this defense, but I am still hoping I’ll get the chance. Unlikely as this scenario may be, if you truly are not aware of the marijuana in your pocket because it isn’t yours and you did not know it was there, you would not be guilty of actually possessing the weed. Now whether a jury is ever going to believe that is a different story.

Constructive possession doesn’t require the object to be on you. It only requires you to be aware of it and have the power and intent to control it. Let’s switch up the easy shoes example again. You have another pair of tennis shoes at home in your closet. You aren’t wearing them now but you constructively possess them. Why? You are aware of their presence and you have the power and intent to control them. They are your shoes, you just don’t have them on you.

Alright, now the fun stuff. Consider the following example:

Best buds, Carol, Becky, and Karen, are driving home from the bar one night in Carol’s car. Carol is driving and Becky is in the front passenger seat. Karen is alone in the back seat, behind Carol. Karen has a gram of the devil’s lettuce in her pocket that is just hers, but Becky knows about it because Karen keeps bragging about it. Carol has no idea that there is weed in the back of her car. The three of them get pulled over by the police because Carol is speeding. Karen quickly throws the weed under the floor mat in front of the empty seat next to her. Carol consents to let the police search the car, and Officer Friendly finds the blazing broccoli in the back seat and charges all three of them with marijuana possession. No one confesses or makes any statements about who owns the weed.

This situation is not that uncommon. Frequently, an officer will charge multiple occupants of the same vehicle with possession of contraband. If the State can prove that all three of the occupants jointly possess the marijuana, they could all be found guilty. Imagine if the police approach a vehicle where three people are seen passing around a joint. In that case, all three of those people might be guilty of possessing the marijuana.

Now let’s assume that Carol, Karen, and Becky each go to trial separately and agree not to testify against each other. Carol shouldn’t be guilty of possession of marijuana because she actually didn’t know it was in the car. Becky shouldn’t be guilty because she may have known the marijuana was in the car, but it wasn’t hers because she had no power and intent to control Karen’s green ganje. You aren’t in possession of everything your passengers have just because you know they have it. I am not possessing your New Balance shoes just because you are wearing them when you get in my car.

It is the case of Karen where we learn the lesson of why it is important not to confess to crimes. If Karen had confessed, she would certainly have been found guilty. If she doesn’t speak to the police, however, how will the State prove that the marijuana is hers? It isn’t found on her, so she isn’t in actual possession. It is found near her, but it isn’t her car so we can’t presume that she was aware of it. That weed could just as easily be someone else’s who is either in that car then or was at another point in time. Without a statement of guilt, a prosecutor could have a tough time proving Karen was in possession of that weed unless her fingerprints are on it or someone testifies that they saw her put it under the mat.

What is the moral of the story? Stop confessing to crimes. It may be the only reason you get convicted later. Also, make sure your friend Carol doesn’t just agree to let police search her car.