“Constructive Possession” in a D.C. Drug or Firearm/ Gun/Weapon Case
by Jamison Koehler on January 4, 2010
A defendant can in some cases be convicted of a criminal offense in Washington, D.C. for doing nothing more than possessing a particular object or substance.
According to D.C. law, for example, it is illegal to possess marijuana, heroin, cocaine and other substances that are controlled under the D.C. Controlled Substances Act. Possession of other substances, such as oxycontin and percoset, is illegal without a valid prescription.
In addition to certain drugs and other controlled substances, D.C. law restricts the class of people who may be in legal possession of firearms, guns, ammunition, and dangerous weapons. It is, for example, illegal for a drug addict or person who has been convicted of a felony to possess a firearm. D.C. law also restricts the methods, means or modes of carrying a firearm, gun or weapon. For example, carrying a firearm without a valid license pistol would subject a person to the criminal charge of carrying a pistol without a license (CPWL).
For the purposes of D.C. law, there are two forms of possession: (1) actual possession, and (2) constructive possession.
Actual possession is obvious. This means that the person has physical possession of tangible property by, for example, holding it in his/her hand or by carrying it on his/her body or person.
“Constructive possession” is a little bit more complicated.
Courts will often “construe” legal terms, concepts or situations in order to achieve some type of judicial or equitable objective. In the area of landlord-tenant relations, for example, a court might find that a tenant who is still in actual physical possession of a particular apartment has in fact been “constructively evicted” from the apartment due to unlivable conditions caused by the landlord’s neglect. Likewise, in the area of trusts and estates, a court might find that a “constructive trust” exists even where there is no actual trust just because the court believes this would be the fair thing to do.
This is the same idea when applied to criminal law. The defendant does not have to be in actual physical possession of the object if the prosecution can prove that the person both knew about the object and had the “power and intent at a given time to control” it. A firearm in your bedroom closet or a packet of cocaine on a park bench next to where you are sitting can both be found to be in your constructive possession for purposes of criminal prosecution.
In addition, assuming both have the ability and intent to control the property, two or more people can be found to have joint constructive possession of a single object. A court could find, for example, that the driver and front-seat passenger both have constructive possession of a firearm in the console between them.
However, merely being near an object or knowing of its location is NOT sufficient to prove possession. As the D.C. Court of Appeals held in Rivas v. U.S., 783 A.2d 125, 128 (D.C. 2001)(en banc), intent to control the object, as well as the power to control it, is an essential element that the prosecution must prove beyond a reasonable doubt. Specifically, the court held that “there must be something more in the totality of the circumstances – a word or deed, a relationship or other probative factor – that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the [person] intended to exercise dominion or control over the [object], and was not a mere bystander.” Another opinion, Guishard v. U.S., 669 A.2d 1306, 1312 (D.C. 1995), has held that the person need to have “intended to guide its destiny.”