Constructive Possession of Drugs or Weapons in a Car
You are driving down the road minding your own business, when the police pull you over for a broken tail light. The officer takes your license, checks you out, returns to your car, and asks if he can search the vehicle. You are a little hesitant, but you have nothing to hide, so you give the officer your permission. All along you are thinking “no big deal”, until the officer finds a bag of pot hidden under your passenger seat, and a handgun in the glove compartment.
Suddenly, you remember that your roommate borrowed your car last week, and he must have forgotten to take some of his stuff out. You tell the officer what happened and insist that the stuff is not yours, but the officer isn’t buying it. What appeared to be a routine traffic stop turns into a drug possession charge, with the possibility of enhanced penalties for possession of a firearm. “But the guns and drugs are not mine, officer. And I didn’t have either of them on my actual person, so how can you charge me with possession?” This is done under a legal concept known as “constructive possession”.
What is Constructive Possession?
Constructive possession is the idea that you are in possession of drugs, guns, or other illegal goods even if you do not have actual physical possession if:
- You have knowledge that the goods are on or near your property. It does not necessarily have to be proven that you have actual knowledge, knowledge can be inferred from incriminating circumstances, facts, and evidence in the case. However, you must be aware that the goods you are in “possession” of are illegal.
- You are able to maintain control or dominion over them. This means having the power and intention – directly, indirectly, or through someone else – to control the whereabouts of the drugs or weapons. Even if you are not in physical possession of the goods, if you have the ability to obtain physical possession, you may be found to have control or dominion.
Constructive possession can be sole (one person), or it can be held jointly between two or more people. Going back to the example of the drugs and gun found in your vehicle, the fact that the stuff belongs to your roommate does not necessarily preclude you from also having constructive possession of them.
Constructive Possession in Kentucky
The application of the constructive possession doctrine varies widely from state to state. For example, many states are moving toward the legalization of marijuana, and these states tend to have looser enforcement of drug possession laws. Here in Kentucky, however, police and prosecutors still aggressively enforce the state’s drug laws. With regards to constructive possession, the Kentucky Supreme Court has maintained that this doctrine can be applied to both drugs and firearms, and that penalties can be enhanced if a defendant who is charged with possession of a controlled substance is also in constructive possession of a firearm.
This question was dealt with in the 1998 Kentucky Supreme Court case Houston vs. the Commonwealth of Kentucky. In this case, the defendant, who was charged with a Class C felony for trafficking cocaine had the charge upgraded to a Class B felony due to possession of a firearm at the time of the offense. Kentucky law calls for the enhancement of a penalty to one class more severe when in possession of a firearm (KRS 218A.992).
The defendant was charged after police found quantities of crack cocaine and three firearms in a Lexington, KY apartment the defendant was staying at. The defendant argued that he was from Detroit and had only stayed there a couple of weeks, and that the contraband and firearms belonged to others who lived there. The defendant argued further that he should have been granted a directed verdict (a returned verdict of “not guilty”) on the issue of the firearm possession because he did not have actual physical possession of the firearms. Though the police found three firearms in the apartment, none were on the defendant’s person. Furthermore, defendant was in a bedroom where none of the firearms were located, and no fingerprints were found on them.
The court held that actual physical possession of a firearm is not required to enhance a drug violation penalty under KRS 218A.992, but that it could be enhanced if the offender has constructive possession of the firearm. The court cited rulings dating back to 1972 to support the use of the constructive possession concept to connect defendants to controlled substances. Although the court could find no Kentucky rulings dealing with constructive possession in connection with firearms, it cited numerous other jurisdictions that accepted this concept.
The court also acknowledged that there had been conflicting lower court rulings on this issue, but nonetheless, they held that for offenses arising out of KRS 218A, the constructive possession concept is applicable. The court went even further by saying “to the extent the Court of Appeals opinion in Powell v. Commonwealth, Ky.App., 843 S.W.2d 908 (1992) requires actual possession of contraband for the purposes of KRS Chapter 218A, it is overruled.”
Along with upholding the applicability of the constructive possession standard, the court also denied the defendant’s request for a directed verdict on the firearms issue stating that “a reasonable juror could have believed beyond a reasonable doubt that the appellant had constructive possession of the firearms in this case.”
The 1998 KSC ruling makes the position of the state clear that the constructive possession standard can be applied when drugs and weapons are found in a car, even if you deny all knowledge of it. When this occurs, you need an experienced attorney by your side who understands state laws, how they are applied by the courts, and the most effective defense strategies to mitigate the circumstances as much as possible.
Speak with a Skilled Kentucky Criminal Defense Lawyer
Being convicted of drug possession (whether it be actual or constructive possession) can haunt you in numerous ways. In addition to heavy fines and potential jail time, you may find it more difficult to obtain housing, employment, financing, admission to college, and to legally purchase a firearm. And if you are a professional who requires a state license, you may find that your professional license is in jeopardy as well.
Attorney Ron Aslam has several years of experience securing favorable outcomes for individuals facing all types of criminal charges in Kentucky. Attorney Aslam understands what is at stake, and he fights hard to ensure that your rights and interests are fully protected. Contact our Louisville office at 502-581-1676 for an initial consultation and case assessment.