Co-Authored by Erin Sweeney (Law Student) and Chris Doran, Esq.

Can I Be Charged for Possession even if it’s Not Mine? — YES.

Possession charges are extremely common in Arizona. The most common types of possession charges are, unsurprisingly, those related to drug offenses — either possession of a narcotic drug or possession of drug paraphernalia. For those who have a previous conviction, it is also common to be charged with Misconduct Involving Weapons, or possession of a firearm when you are a prohibited possessor.

However, not every possession case involves the contraband item in your hand or on your person. In fact, it is entirely possible to be charged for possession even if the contraband was found nowhere near you. Most likely, it was found inside the car or house you were in, even if you didn’t know it was there. For these types of cases, prosecutors have to prove the elements of “ constructive possession. ”

While constructive possession is much harder to prove than actual possession, in Arizona, the elements of constructive possession are more strict than other jurisdictions: A prosecutor only has to prove the prohibited property was “found in a place under [your] dominion or control, and under circumstances from which it can be reasonably inferred that [you] had actual knowledge of the existence of the property.” State v. Cox (2007).

To break that down into smaller elements:

Constructive possession is hard to understand, so if you’re still not sure what that term means, you’re not alone. Courts struggle with this concept still to this day. An easy way to think about constructive possession is to imagine the prohibited item as money in your bank account. While you may have never seen or touched the physical bills, you know that the money is there. You can also exercise control over that money, such as transferring it to someone else or using it to make a purchase at Target.

How Do You “Knowingly” Possess Contraband?

Contrary to what we typically think about the definition of “knowingly,” a prosecutor doesn’t have to prove that you had actual knowledge of the contraband item. In Arizona, all a prosecutor has to do is provide enough evidence, either direct or circumstantial, such that a jury could come to a “reasonable inference” that you knew the contraband was there and where it was. In other words, they have to prove that you probably knew or should have known that the contraband was there.

Not only does a prosecutor have to prove that you reasonably knew of the contraband, but they also have to establish that you knew or should have known that the contraband was illegal.

Examples of evidence that would promote a reasonable inference of knowledge could be that (1) the contraband was out in the open or (2) was located in a place easily accessible to you. For example, if contraband was found in the glove compartment of your car, knowledge of the contraband could be reasonably inferred on you because you had access to that glove compartment, and it is a location typically used by the driver of the car.

How Do You Exercise “Dominion or Control” Over Contraband?

Even if a contraband item is out in the open or you have knowledge of it, that is not enough to ultimately convict you of constructive possession. A prosecutor also has to prove that you exercised “dominion or control” over the contraband. Your “mere presence” in front of a contraband item doesn’t prove that you control the item in some way, there must be some other evidence that shows you had either the ability or the intention to control the contraband.

Again, dominion and control can be shown through direct or indirect circumstances, such as the contraband being located on your personal property. It is much more likely or reasonable to infer you had control over contraband if it is found in a location that belongs to you because you would have some sort of control over that location.

While a charge of constructive possession is much more difficult to prove than actual possession (being found with the contraband on your person), a jury could still be convinced and convict if a link can be made between you and the illegal item, even if you didn’t know it was there. Doran Justice, PLLC has represented many clients charged with constructive possession and we know that there are many ways that contraband items make their way into your car or home, due to no fault of your own. If you have been charged with possession, you should contact our firm right away so that you don’t have to take the fall for someone else’s illegal items.

*This information is correct and up to date as of the day this article was written.

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