Q: Can you be charged with possession of a narcotic drug even if it’s not on you?

A: Yes.

In Indiana, if you posses something, it either means you own it or you exert control over it. There are two types of possessionactual and constructive. Actual possession is where you knowingly have direct physical control of something. For example, if you have a bag of marijuana in your hand or in one of your pockets, this would be actual possession.  Prosecutors love cases like these.

Constructive possession is more complex. If you don’t have actual possession of something, the State can still argue that you constructively possessed it. If you knowingly have both the capability and the intent to exercise control over something at a given time, it can be argued that you’re in constructive possession of it.

This is a two-step test; neither capability without intent nor intent without capability is enough. In other words, if it would’ve been possible for you to exercise control over something, but you never had any intention of doing so, that wouldn’t be constructive possession.

Likewise, if you intended to exercise control over something, but had no possible way of doing so, that wouldn’t be constructive possession either. Constructive possession requires both: 1) that you’re capable of exercising control over the thing in question; and 2) that it was your intent to exercise control over the thing in question.

In the State of Indiana, your intent can be inferred from any of the following types of circumstantial evidence:

  • incriminating statements that you’ve made to others
  • trying to flee the scene or making obviously sneaky gestures
  • contextual clues that suggest drug manufacturing
  • the actual physical distance between yourself and the contraband
  • whether the contraband was in plain view
  • whether any of the contraband has been mingled with any of your personal possessions

Depending on the quantity of contraband in question, you can be facing a serious prison sentence based solely on a theory of constructive possession. The State must prove beyond a reasonable doubt that you were in possession of contraband. It’s very important to remember that your mere presence at the scene of a crime does not establish possession.

When in doubt, plead the 5th and exercise your right to remain silent. If you’re charged with constructive possession, you need to hire an experienced criminal defense attorney who’s familiar with the nuances of how possession cases are prosecuted.

If you or a loved one is facing criminal charges, you owe it to yourself to consult with the Marc Lopez Law Firm. Call us at 317-632-3642, and remember—always plead the 5th!