Constructive Possession in Virginia Criminal Cases: How Prosecutors Try to Prove You Possessed Drugs or Firearms
Knowingly or intentionally possessing a controlled substance is unlawful. Possession can be actual or constructive. To establish constructive possession, prosecutors generally must prove that the defendant knew the contraband was present, knew its character, and exercised dominion and control over it. The Supreme Court of Virginia recently applied these requirements in Commonwealth v. Wilkerson.
This issue frequently arises when drugs or firearms are discovered in a vehicle, apartment, bedroom, bag, or other location used by more than one person. A Virginia criminal defense lawyer can examine whether the evidence actually connects the defendant to the contraband.
Prosecutors May Use Where the Drugs or Firearm Were Found to Connect Them to You
Location is often one of the first facts prosecutors use. A firearm underneath the driver’s seat, drugs beside someone’s belongings, or contraband within immediate reach may be presented as evidence of possession. However, location has legal limits. The Supreme Court of Virginia has held that mere proximity to an illegal drug is insufficient to establish possession.
Virginia law provides another important protection in drug cases. Ownership or occupancy of a vehicle or premises where controlled substances are discovered does not create a presumption of knowing or intentional possession.
A passenger sitting near drugs, for example, is not automatically guilty because the drugs were within the same vehicle. Prosecutors need evidence connecting that particular person to them.
Prosecutors May Use Your Statements and Conduct to Show You Knew the Item Was There
Constructive possession requires more than showing where the contraband was found. Prosecutors must also establish knowledge. Virginia courts permit knowledge to be established through a defendant’s acts, statements, and conduct. In Womack v. Commonwealth, the Supreme Court of Virginia considered conduct and surrounding circumstances when determining whether the defendant knew drugs were present and exercised control over them.
Prosecutors may rely on statements acknowledging the item, attempts to conceal it, movements toward or away from it, or other conduct they argue demonstrates awareness. The defense can challenge whether those actions actually prove knowledge or have another reasonable explanation.
Prosecutors May Use Your Control Over a Car, Home, or Room to Establish Possession
Control over the location can become another part of the Commonwealth’s case. Prosecutors may argue that a driver had control over a vehicle, a resident controlled a bedroom, or a tenant controlled an apartment where contraband was discovered. They can combine occupancy with other circumstantial evidence when attempting to establish constructive possession.
Occupancy alone, however, is not enough. The Supreme Court of Virginia has rejected the proposition that simply owning or occupying the place where drugs are discovered establishes possession. This distinction can become especially important in shared vehicles, apartments, hotel rooms, and other spaces accessible to several people.
Prosecutors May Use Personal Belongings to Connect You to Hidden Contraband
When drugs or firearms are hidden, prosecutors may look for objects connecting a defendant to the exact location where they were discovered.
Identification, mail, clothing, keys, documents, bags, or other personal property may become circumstantial evidence. For example, drugs inside a bag that a defendant identifies as exclusively his can create a much stronger prosecution argument than drugs discovered in a common area accessible to several people.
That distinction appeared in Commonwealth v. Wilkerson, where the defendant’s statements claiming ownership and exclusive access to a property bag containing cocaine were significant to the constructive-possession analysis.
Prosecutors May Combine Circumstantial Evidence to Prove Dominion and Control
Constructive possession cases rarely depend on one fact. Prosecutors may combine proximity, statements, ownership, access, personal belongings, and conduct to argue that the defendant exercised dominion and control over the contraband.
The same principle can apply to firearms. Virginia courts recognize that actual physical possession is not required to establish unlawful firearm possession. For a prohibited person, Virginia Code § 18.2-308.2 also carries mandatory minimum imprisonment in specified cases involving prior felony convictions. Each factual connection therefore matters when determining whether the Commonwealth can prove possession beyond a reasonable doubt.
Do Not Let Proximity Become Proof of Possession
Being near drugs or a firearm is not automatically the same as legally possessing them. The Commonwealth still must establish the evidence necessary to connect the defendant to the contraband. Contact Rudolphi Law to discuss a constructive possession charge with a Virginia criminal defense attorney.