North Carolina Criminal Law: Understanding "Constructive Possession"
There are several types of North Carolina Criminal Charges where a Defendant can face a charge for possession of some kind of contraband when, in fact, they are not in actual possession of the item(s). The idea of constructive possession can be difficult for some to understand but it is worth exploring as it frequently results in someone charged with North Carolina drug charges or other types of charges involving contraband.
When a Defendant is facing a possession charge in North Carolina, the "possession" part of the crime falls into one of two categories: Actual Possession and Constructive Possession. Actual Possession is where the contraband is in exclusive control of the Defendant. This type of possession is normally seen where the Defendant is found with the contraband on the Defendant's person (i.e. in his clothing), the Defendant is aware or should be aware of it's presence, and has the power and intent to control it. This is different from Constructive Possession, where the Defendant, while not having the contraband on his or her person, still has the intent and capability to control the contraband. Constructive Possession is usually seen where the Defendant is found with the contraband in their vehicle or home.
Constructive Possession becomes especially difficult when persons, other then the Defendant, also have the capability and intent to control the same contraband. In these circumstances, the State has the added burden of proving some other incriminating circumstantial evidence to show the Defendant's culpability for the crime. Examples of these, which have played out in recent caselaw include: suspicious activity, personal items found with the contraband, the Defendant did/did not own/live in the location where the contraband was found, and the Defendant's proximity to the location where the contraband was found.
"Many of my clients have been charged with Possession of Paraphernalia, North Carolina Possession of Marijuana, and Possession of Alcohol by a Minor as a result of Constructive Possession. Many people do not realize how, even without knowledge of the contraband, they can still be charged with a Possession crime in North Carolina. Understanding the concept of Constructive Possession may help some avoid a charge, and certainly it is important when building a defense to these types of crimes.
Since most possession crimes involve the contraband being found in some location which is not in the plain view of the public, Police Officer's frequently attempt to search the person and/or premise the Defendant was in at the time the Police Officer came into contract with the Defendant; again normally a home or car. Under these circumstances, the Defendant either needs to consent to a search, or the Police Officer must have Probable Cause to search. Though everyone has the right to refuse to consent to a search, many do not as they believe it will result in a better outcome for their case. The reality is, though the Police Officer will normally refer to the Defendant has having been "polite and cooperative" when asked by the DA or Judge, it otherwise is not beneficial and makes defense of these types of charges more difficult.
When facing a North Carolina Criminal Charge, it is always best to speak with a Criminal Defense Attorney to best be advised as to any potential defenses. This article is being provided for informational and educational purposes only and is not intended to advise anyone regarding their particular criminal matter.
When a Defendant is facing a possession charge in North Carolina, the "possession" part of the crime falls into one of two categories: Actual Possession and Constructive Possession. Actual Possession is where the contraband is in exclusive control of the Defendant. This type of possession is normally seen where the Defendant is found with the contraband on the Defendant's person (i.e. in his clothing), the Defendant is aware or should be aware of it's presence, and has the power and intent to control it. This is different from Constructive Possession, where the Defendant, while not having the contraband on his or her person, still has the intent and capability to control the contraband. Constructive Possession is usually seen where the Defendant is found with the contraband in their vehicle or home.
Constructive Possession becomes especially difficult when persons, other then the Defendant, also have the capability and intent to control the same contraband. In these circumstances, the State has the added burden of proving some other incriminating circumstantial evidence to show the Defendant's culpability for the crime. Examples of these, which have played out in recent caselaw include: suspicious activity, personal items found with the contraband, the Defendant did/did not own/live in the location where the contraband was found, and the Defendant's proximity to the location where the contraband was found.
"Many of my clients have been charged with Possession of Paraphernalia, North Carolina Possession of Marijuana, and Possession of Alcohol by a Minor as a result of Constructive Possession. Many people do not realize how, even without knowledge of the contraband, they can still be charged with a Possession crime in North Carolina. Understanding the concept of Constructive Possession may help some avoid a charge, and certainly it is important when building a defense to these types of crimes.
Since most possession crimes involve the contraband being found in some location which is not in the plain view of the public, Police Officer's frequently attempt to search the person and/or premise the Defendant was in at the time the Police Officer came into contract with the Defendant; again normally a home or car. Under these circumstances, the Defendant either needs to consent to a search, or the Police Officer must have Probable Cause to search. Though everyone has the right to refuse to consent to a search, many do not as they believe it will result in a better outcome for their case. The reality is, though the Police Officer will normally refer to the Defendant has having been "polite and cooperative" when asked by the DA or Judge, it otherwise is not beneficial and makes defense of these types of charges more difficult.
When facing a North Carolina Criminal Charge, it is always best to speak with a Criminal Defense Attorney to best be advised as to any potential defenses. This article is being provided for informational and educational purposes only and is not intended to advise anyone regarding their particular criminal matter.
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