If You Have Been Charged With a Crime that Requires the Prosecution to Prove Possession Based on a Constructive Possession Argument It Is Crucial for

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1 CONSTRUCTIVE POSSESSION IN TENNESSEE CRIMINAL OFFENSES If You Have Been Charged With a Crime that Requires the Prosecution to Prove Possession Based on a Constructive Possession Argument It Is Crucial for You to Understand What Constructive Possession Is and How the State of Tennessee Will Try to Prove It

2 Possession is a primary element in many criminal offenses in the State of Tennessee. For example, the offense of Possession of a controlled substance clearly requires the State of Tennessee to prove that the defendant possessed the controlled substance. At first glance, the word possession seems easy enough to define and prove; however, within the law the word possession remains an elusive concept. The reason for this is that possession can be actual or constructive. If you have been charged with a crime that requires the prosecution to prove possession based on a constructive possession argument it is crucial for you to understand what constructive possession is and how the State of Tennessee will try to prove it. Only an experienced Tennessee criminal defense attorney can review the unique facts and circumstances of your case; however, a basic understanding of constructive possession in general may also be helpful. The Burden of Proof What the Prosecution Must Prove In a criminal prosecution the State, by the prosecuting attorney, has the burden to prove the defendant guilty beyond a reasonable doubt. In order to accomplish this goal, the prosecuting attorney must convince a jury that each and every element of the offense has been proven beyond a reasonable doubt. For example, Tennessee Code, Simple Possession or Casual Exchange reads as follows: It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid 2

3 prescription or order of a practitioner while acting in the course of professional practice. For the State of Tennessee to convict someone of this offense the prosecutor must prove, among other things. That the defendant knowingly possessed or casually exchanged a controlled substance. (Emphasis added) Actual Possession If asked what the word possession means, most people would provide a definition of what the law considers actual possession. Actual possession, in legal terminology, means that an individual has direct and physical control over the item in question. For a prosecuting attorney, proving actual possession is usually fairly easy. Imagine a law enforcement officer pulls over an individual for a traffic stop and asks the individual to exit the vehicle. The officer then conducts a search and finds a baggie full of heroin in the suspect s pants pocket. The suspect had actual possession of the contraband in that case. Constructive Possession If all prosecutions involved actual possession the State of Tennessee would never lose a trial. Unfortunately for the State, not all prosecutions are that simple. Frequently, a suspect is arrested and contraband found within the vicinity of the suspect but not directly on the suspect. The police officer may be certain that the contraband belonged to the suspect; however, proving ownership of the contraband requires making a constructive possession argument at trial because the item in question was not found under the defendant s physical 3

4 control. Defining constructive possession has been a challenge that courts has struggled with for decades. In Tennessee, the courts have defined the term as follows: Constructive possession occurs when a person knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others. State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) (quoting United States v. Craig, 522 F.2d 29, 32 (6th Cir. 1975)). The key words in the definition are dominion and control. Therefore, for the prosecuting attorney must prove that a defendant had dominion and control over the contraband to be found guilty of the crime in question. Proving Constructive Possession Case Studies For a prosecuting attorney, proving constructive possession can be more difficult than it may sound. To illustrate the difficulty, consider the follow four scenarios wherein you are charged with possession of a controlled substance. Keep the definition of constructive possession in mind. 1. You are driving in a vehicle owned by you and are pulled over by the police. There are no passengers in the vehicle at the time. The police conduct a search and find a baggie containing several pills that turn out to be oxycodone for which you have no prescription. 2. You are driving a vehicle you borrowed from a friend when the police pull you over. No other people are in the vehicle at the time. A subsequent search of the vehicle uncovers 4

5 the baggie of pillsin the center console within easy reach--that turn out to be oxycodone for which you have no prescription. You just took possession of vehicle 30 minutes prior to the arrest and claim you knew nothing about the pills. 3. You are driving your vehicle with three passengers in the car at the time. The police pull you over and conduct a search of the vehicle. A baggie of oxycodone pills is found under the driver s seat but there was a passenger sitting directly behind you in the vehicle. 4. You are a passenger in a vehicle owned by someone else. The police pull the vehicle over and search the car. A baggie of oxycodone pills is found under the passenger seat. You were sitting behind the passenger at the time of the stop. In each of these scenarios the police can, and often do, charge anyone in the vehicle with possession of the controlled substance found during the search. In fact, everyone in the vehicle can be charged with possession of the same contraband. In which scenario does possession seem the most clear? Are you guilty beyond a reasonable doubt in any of the scenarios? Scenario one seems the most likely to amount in a conviction. By the time you get to the fourth scenario, it becomes difficult to argue that you exercised dominion and control over the contraband. Scenarios such as these occur every day and many result in charges being filed against the suspect. If you find yourself facing charges for a crime that is based on a constructive possession argument, consult with an experienced Tennessee criminal defense attorney right away to ensure that you are not convicted of a crime you did not commit and/or that the State of Tennessee cannot prove beyond a reasonable doubt. Cornell University Law School, Constructive Possession Virginia Law Review, Constructive Possession in Narcotics Cases, To Have and Have Not Court of Criminal Appeals of Tennessee, State v. Mershaun William Scott, (2012) 5

6 About Bennett and Michael, Attorneys at Law The law firm of Bennett & Michael is located on the historic public square in Murfreesboro, Tennessee. We offer knowledgeable and effective representation for families in divorce and family law situations, injured victims of negligent accidents, and those charged with misdemeanor or felony offenses. Our firm takes pride in being a local law firm that delivers superior results at competitive prices right here at home for the people of Murfreesboro, Smyrna, La Vergne, and the greater Rutherford County area. Our staff is professional and helpful, and our attorneys are experienced litigators and trial lawyers. When you need legal help, you should be confident that the lawyer you choose will provide you with exceptional and trustworthy services. Our experienced, dedicated, and compassionate lawyers and legal staff are committed to always protecting clients rights and relentlessly fighting for their best interests. Enlist the unyielding advocacy at Bennett & Michael, and you can trust that you and your family will get the results, service, and respect that you deserve. You won t be disappointed. 6

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