Drug Possession Basics, Part 1: Actual and Constructive Drug Possession

 Posted on December 06, 2016 in Drugs and Narcotics

If you have ever watched the reality/documentary show COPS, you have probably heard many of the typical claims a suspect often makes when he or she is found to be in possession of what looks like illegal drugs. “That’s not mine,” “I have no idea where that came from,” or “My friend must have left that in my car.” While such excuses ring extremely hollow, there may be situations in which the driver of a vehicle is not aware that one of his or her passengers has cocaine or ecstasy in his or her possession. (Possession of up to 10 grams of marijuana was recently decriminalized in Illinois, making marijuana a less likely candidate for this type of case.) If you are a driver in such a situation, could you be responsible for the drugs your friend is carrying?

There is not a simple answer to that question. As with most areas of the law, it depends entirely on the circumstances of the situation. Important elements include where the drugs are being carried or hidden and whether you really did know that drugs were present in your car. Over the next few weeks, we will look at the factors that can affect a drug possession charge, helping you get the information you need to protect your rights.

Two Types of Possession

Criminal court case law over the years has established a precedent of two distinct types of drug possession in Illinois. As far as illegality and possible penalties, both are equivalent, but they refer to two different ways that you could be found to “possess” an illegal substance.

Actual Possession

Actual possession of an illegal drug is exactly what it sounds like. It refers to a person have direct physical control over a substance. This may include drugs found in a suspect’s pocket or purse, as well as cases in which law enforcement sees a suspect trying to dispose of the drugs while being pulled over or stopped. If one of your passengers is found to have drugs on their person, he or she maintains actual possession of them, meaning that you are unlikely to be held responsible.

Constructive Possession

What if you do not have any drugs in your pocket, but there are some in the glove compartment or the trunk? Or, what is law enforcement finds drugs hidden under the seat of your car? You are not in actual possession of the substance, but you may be charged with having constructive possession, meaning that you have the “intent and capability to maintain control and dominion over” the drugs. Charges for constructive possession may be filed against anyone in the vehicle, though the owner of the vehicle is likely to be at highest risk.

Next week’s post will discuss the knowledge element of a drug possession charge and whether law enforcement can prove that you knew about drugs in your vehicle. In the meantime, if you have been arrested because a passenger brought illegal substances into your car, contact an experienced Chicago criminal defense attorney right away. Call Luisi Legal Group at 773-276-5541 for a free consultation today.

Sources:

https://scholar.google.com/scholar_case?case=8096311920373774336&hl=en&as_sdt=6&as_vis=1&oi=scholarr

http://www.illinoiscourts.gov/R23_Orders/AppellateCourt/2013/2ndDistrict/2110830_R23.pdf