Think You Don’t Possess Something? Try Constructive Possession
The traditional way to understand possession is that you actually have the thing, the object in your hand. Not so in North Carolina, which accepts the legal theory of “Constructive Possession.”
Constructive Possession is the idea that a person can have “custody and control” over an object without having actual, physical control of the thing. (Notably, Wikipedia, linked above, defines constructive possession as a “legal fiction.” This is going too far. It is more appropriately called a “legal theory.”)
What this means is that a person need not be in direct possession of an object of contraband in order to “possess” it by North Carolina Law.
“A person is in constructive possession if the person does not have it on the person but is aware of its presence and has the power and intent to control its disposition or use.” N.C.P.I. Crim. 104.41 (2015). Additionally, a person may constructively possess an item individually or together with others.
Consider the following example. Person A and Person B live in a two-bedroom apartment together. Person A and Person B do not get along, so they each keep their bedrooms locked, and each one is the only person in possession of the key. There is a common bathroom, living room and kitchen, which is open to all of them. The police raid the apartment. They find a pound of marijuana on the living room coffee table, cocaine in Person A’s room and a stolen firearm in Person B’s room. When the police enter, both are on the couch in the living room.
Person A and Person A alone constructively possess the cocaine. Person B and Person B alone constructively possess the stolen firearm. And both of them potentially constructively possess the marijuana on the kitchen table.
Each person, individually, is the only person capable of possessing the contraband in their constructive rooms, albeit constructively. Similarly, because the contraband was found in the common area of the living room, it is possible for both individuals, collectively, to possess the marijuana.
At Garrett Walker Aycoth & Olson, we have extensive experience litigating possession cases, from misdemeanor marijuana to firearm by a felon and high-level trafficking cases. Call Garrett Walker Aycoth & Olson for a free consultation.