Although you may not have ever given the matter any thought, a number of criminal offenses involve “possessing” something that is illegal. It might be possessing a controlled substance, possessing a firearm, or possessing stolen property; however, “possession” is frequently an element of a criminal offense. Possession, in legal terms, is not as simple of a concept as you might think it is. In fact, the manner in which you allegedly possessed the contraband in your case could be the key to your defense if the State of Nebraska is relying on “constructive possession.” For anyone who is currently facing charges for an offense that involves constructive possession, an Omaha criminal defense attorney explains the concept of constructive possession and how it might be part of your defense.
Crimes Involving Possession
When you are charged with a criminal offense, the State of Nebraska has the burden of proving your guilt beyond a reasonable doubt. To do that, the prosecutor must prove each and every element of the offense beyond a reasonable doubt. Many criminal offenses involve “possession” of contraband, such as possession of a controlled substance, or “possession” by someone who is not authorized to possess the item in question, such as possession of a firearm by a convicted felon. By way of illustration, Nebraska Revised Statute 28-416(1) makes it illegal to possess, with intent to distribute, a controlled substance, reading as follows:
“Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance.” (Emphasis added)
Therefore, if you are charged with violating section 28-416(1) on the basis that you possessed the controlled substance, one of the elements the State must prove is that you did, in fact, possess the controlled substance. That sounds simple enough right? Not always.
An Omaha Criminal Defense Attorney Explain Actual Possession vs. Constructive Possession
In everyday conversation, the concept of possession is simple enough. We all know what someone means if they use the word “possession.” In legal terms, however, the concept of “possession” can become complicated because there are actually two types of possession – actual and constructive.
Actual possession is what most people mean when they use the word in everyday speech. Under the law, actual possession means the defendant had “physical custody and/or control of an object.” If the police stopped you and you had an ounce of cocaine in a baggie in the pocket of your jeans, you had actual possession of the contraband.
What happens though, if you were the passenger in a vehicle that was stopped and the officer found that baggie under the seat in the car? Because this clearly doesn’t fit the definition of actual possession, the concept of “constructive possession” evolved within the law. The most common definition used to explain the legal concept of constructive possession requires that a defendant have:
- knowledge of the item’s presence on or about his/her property and
- the ability to maintain dominion and control over it.
So if we go back to the baggie in the vehicle, a number of factors will likely become important when trying to decide if you had constructive possession of the cocaine, including:
- Were you driving?
- Where were you sitting in relation to where the contraband was located?
- Whose vehicle was it?
- How long had you been in the vehicle when it was stopped?
Questions such as these become very important when building a defense to a case built on constructive possession. The important thing to understand is that while constructive possession can be enough to secure a conviction, a case based on a constructive possession argument is never as strong as a case based on actual possession.
Contact Us
If you have been charged with criminal offense in the State of Nebraska it is certainly in your best interest to consult with an experienced Nebraska criminal defense lawyer right away. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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