Many criminal cases rest on a prosecution claim that because one passenger of a vehicle, or occupant of a room, possessed something that was illegal, then other people in the immediate area are also to blame for possessing the item.  This legal fiction, called “Constructive Possession,” is subject to rigorous proof requirements in Pennsylvania.  In practice, however, Judges tend to overlook the required elements of Constructive Possession in favor of something that could be called Guilt by Association.  

In a recent trial, I overcame this judicial bias by having each defendant (the driver who actually possessed the gun and his front seat passenger who didn’t) testify.  The driver said he didn’t show or tell his passenger about the gun, and the passenger testified that if he knew a gun was present, he would have exited the vehicle immediately.  Without this testimony, it is likely that my client would have been convicted of possessing a handgun, despite the absence of any direct testimony that he knew of its presence.  A piece I recently wrote on the required elements of Constructive Possession follows:

I.          INTRODUCTION 

We put ourselves at serious risk of criminal prosecution when we ride in a car, visit a home, or even walk with a group of friends, if one person among several is carrying drugs, a gun, or something else illegal.  To prove the point, Pennsylvania law provides a five-year mandatory minimum sentence for all “accomplices” (basically, anyone in the immediate area) if a police find a gun in or near an alleged crime scene.  We are not our brother’s keeper, but what our brother is carrying can land us in serious trouble.  Therefore, we provide this guide to the doctrine of constructive possession. 

II.        ELEMENTS OF CONSTRUCTIVE POSSESSION

The Pennsylvania Superior Court says that “constructive possession is the ability to exercise conscious control or dominion over the illegal substance and the intent to exercise that control.”  Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003), see also Commonwealth v. Hamm, 301 Pa. Super. 266, 447 A.2d 960, 962 (1982) (“To prove constructive possession of an item, the Commonwealth must show that the defendant had both the intent and the ability to control the item.”).  “At the very least, the evidence must show that the defendant knew of the existence of the item.”  Id. (string citation omitted).  Importantly, a Court “may not infer that [defendant] knew of the weapon’s existence simply from the fact that it was hidden in an automobile.”  Id.  In Hamm, police officers driving “about half a car length” behind the vehicle operated by defendant James Hamm observed a back seat passenger pass an unknown object to the front seat passenger, who was then seen to “bend down in a forward motion as though placing something on the floor in front of him.”  Id. at 961-62.  Hamm pulled over voluntarily (because he recognized the passengers in the unmarked car behind him as local police officers), and as the passengers exited the vehicle, the officers saw a .22 caliber revolver resting on the front floorboard, passenger side.  See id. at 962.

Mr. Hamm was found guilty by a jury of possession of the revolver and of conspiracy to possess the same weapon, but the Superior Court reversed each conviction.  On constructive possession, the Court reasoned that, even if Mr. Hamm had seen the revolver as it was handed to his front seat passenger, “there was no evidence to suggest that [Hamm] knew of the weapon’s existence before it was produced by [the rear seat passenger].”  Id.

            The Superior Court reached a similar conclusion in Commonwealth v. Boatwright, 308 Pa. Super. 41, 453 A.2d 1058 (1982), where it vacated defendant’s conviction for Carrying a Firearm Without a License.  See id., 453 A.2d at 1059.  In Boatwright, City of Pittsburgh police officers responded to a radio call for three “suspicious” men seated in a vehicle parked in front of a residence.  Id. at 1058.  Upon arrival, officers observed Albert Boatwright seated in the front passenger seat of the vehicle, and then watched him “moving towards the left rear” of the vehicle.  Id.  After police ordered all occupants out of the vehicle, they observed a handgun on the floor of the left rear passenger compartment of the vehicle, the same area to which Boatwright had been seen “moving towards.”  Id.  Reviewing the elements of constructive possession, the Court observed that: (1) “the Commonwealth must present evidence to show that [defendant] had both the power to control the firearm and the intent to exercise that control;” and that (2) “mere presence at the scene where the gun was found is not sufficient.”  Id. at 1059.  The Court concluded its analysis by vacating Boatwright’s conviction, because “the only evidence other than mere presence was [the officer’s] testimony that appellant made a movement towards the left rear of the vehicle.”  Id. 

            More recently, and in the context of Possession of a Controlled Substance, the Pennsylvania Supreme Court observed that “the existence of constructive possession of a controlled substance is demonstrated by the ability to exercise a conscious dominion over the illegal substance; the power to control the illegal substance; and the intent to exercise that control.”  Commonwealth v. Johnson, 611 Pa. 381, 26 A.2d 1078, 1093 (2011).   The Johnson Court went on to hold that the lower courts had erroneously concluded that the defendant, Omar Johnson, could be held in constructive possession of a large quantity of drugs found in a co-defendant’s vehicle, which Johnson did not own, control, or enter.  See id. at 1095.

III.       CONCLUSION

The cases discussed above show that defendant can win in a constructive possession case, but the key to success is defense counsel who understands how to battle the Commonwealth on each element of constructive possession.