Proving Possession In Criminal Cases

Apr 19 2017

As a NYC criminal defense attorney, I frequently am tasked with representing individuals who are accused of possessing something that is illegal. Whether the contraband in question is an unlicensed firearm or a controlled substance or narcotic, the penalties for being convicted of possessing the contraband can be stiff (decades in prison). But exactly how does a prosecutor prove that a person possessed the contraband? This sounds like a common sense issue. However, there are a lot of things that come up in “possession cases” that can easily lead to false conviction.

To illustrate how complicated and scary possession cases can be, allow me to give you a hypothetical set of facts that actually comes from a case that I handled recently (as always, any identifying information regarding my client is deliberately omitted to protect the client’s identity). In this case my client was sleeping at the apartment of a person whom my client was seeing. This person who was seeing my client has a roommate who has a separate room. At 6 am in the morning on a particular day, the police executed a search warrant and searched the entire apartment. My client had no clue there was anything in the apartment worth searching for, didn’t know there was any contraband in it, and certainly had no idea the police were looking to arrest the occupants. Upon searching the apartment though, the police discovered two safes- one in the room that my client was sleeping in and the other in the roommate’s bedroom. In these two safes were numerous firearms and a massive amount of drugs. The police charged all three individuals with possessing the firearms and the drugs simply because all three were there when the police got there. In fact, because of the firearms and because the volume of the drugs was large, my client faced a mandatory minimum of eight years in a New York state prison and a maximum sentence of decades in prison if convicted (after a long and hard battle, I was thankfully able to get the case dismissed).

The above fact pattern is somewhat scary for a lot of people because many have found themselves in a similar situation. Perhaps they weren’t so unlucky that there were dangerous weapons and kilos of narcotics in a room that they slept in, but many people have been in a situation where they were either at a party or in a car and someone else brought something that was illegal to the situation. The natural question that arises is to what extent can the illegal contraband be “pinned” on the individuals in the location even though they might not own it?

The easiest way to answer the question is to say that there are two things a prosecutor needs to prove to establish that a person possessed the contraband in question in situations where they weren’t seen physically holding the contraband. First, the prosecutor has to prove that the person knew the contraband was there. This is straightforward and easy to understand. If the cops see you in a room and there is a kilo of heroin on the table in front of you, it wouldn’t be particularly hard to prove you knew the contraband was there. The second thing the prosecutor has to prove though is a little more complicated. The prosecutor has to prove that the person had “dominion and control” over the contraband. Whenever a person is arrested in a room and there is contraband in a drawer, safe, open table, etc, the prosecutor essentially has to prove that the person had “constructive possession” of it. That’s where the “dominion and control” language comes into play. The standard jury instruction on constructive possession states in part that “…a person has tangible property in his or her constructive possession when that person exercises a level of control over the area in which the property is found, or over the person from whom the property is seized, sufficient to give him or her the ability to use or dispose of the property.” A jury has to determine whether the person had constructive possession beyond a reasonable doubt and the way the judge instructs them to do that is to look at this language.

So that’s a quick summary on possession. Possessing any contraband is a big deal and can be scary. The law on this issue is a lot more complicated than the discussion in this blogpost. These kinds of cases can lead to innocent people going to jail. If you, or a loved one, is accused of possessing anything illegal, contact an experienced criminal defense attorney immediately.

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