In a fair majority of drug possession-type prosecutions, the accused Defendant did not have drugs in his pockets or in his hands (or in his mouth as have several of my clients) In the initial consultation, I always have to discuss what is called “constructive possession.” The Supreme Court of Alabama has held that “[i]n order to sustain a conviction for possession of controlled substances, there must be sufficient evidence of either actual or constructive possession.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1973), affirmed, 292 Ala.290, 293 So.2d 314 (1974).
Constructive possession of a drug is a legal conclusion, derived from factual evidence, that someone who does not have physical possession of a thing, in fact, has legal possession of that thing. This is fancy legal language which means that the law will presume you possessed something even if its not in your pocket.
First, the courts require that “[w]hen constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.1983) However, “[t]his knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises” Meeker v. State, 801 So.2d 850, 853 (AlaCr.App.2001) Often, the prosecution’s evidence will included facts that multiple persons were in a residence, car, or place other than the accused Defendant. Therefore, that accused Defendant is not in “exclusive possession” or control of the residence, vehicle, or place. Sometimes, the prosecution’s entire theory will revolve around joint occupancy and possession of the house or car.
In such situations, when the accused is not in exclusive possession of the premises, the requisite knowledge for constructive possession may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986) The courts require some evidence that connects the defendant with the contraband. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984) In Posey v. State, 736 So.2d at 656,658-659, the Court affirmed “a non-exclusive list of circumstances that may establish such a connection between a defendant and the contraband found in a non-exclusive possession situation. The Court stated:
The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the Defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the Defendant is confronted with the possibility that an illicit drug will be found evidence that debris of the contraband was found on the Defendant’s person or with his personal effects; (6) evidence which shows that the Defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.
Additionally, when a person is not in exclusive possession of the residence or vehicle, “the circumstantial evidence had to establish a connection between [the defendant] and the marijuana that excluded every reasonable hypothesis except guilt.” Goodloe v. State, 783 So.2d 931,935 (Ala.Cr.App.2000)
A good example of this type of case is Meeker v. State. In Meeker, the Defendant was convicted based upon the evidence that showed he had visited the residence on a couple of occasions and was possibly staying in a third bedroom. The evidence showed that clothing was found in this room, Meeker’s driver’s licence, a mattress and marijuana were found in the third bedroom. This Court overturned Meeker’s conviction, finding that since he was not present at the time of the raid and since “there was no evidence indicating when or how the license came to be in the room, whether seized marijuana was in the room at the time the license was placed there, or whether [Meeker] had any knowledge that drugs were present in the residence on the . . . the night the residence was searched.” Meeker at 854.