Possession in Indiana
Constructive versus Actual Possession of Narcotics and Guns in Indiana. What constitutes possession? Can two or more people be in possession of one and the same item?
What is Possession?What seems like a pretty basic charge to understand, possession of controlled substances and illegal possession of firearms can sometimes be difficult to fully understand.
At the basic level, possession of controlled substance and possession of firearm cases fall into two broad categories: ACTUAL POSSESSION and CONTRUCTIVE POSSESSION. Actual possession means just that - one is in actual possession of the item. Constructive possession is more complicated. One would be found to be in constructive possession if he/she has both the power and the intention at a given time to exercise control over that item.
"Exert Control over" explainedThe Indiana Pattern Jury Instructions for Criminal Cases defines possession as follows:
Instruction No. 14.3060. Possession defined:
The word "possess" means to own or to exert control over. The word "possession" can take on several different, but related, meanings. There are two kinds of "possession"--actual possession and constructive possession. A person who knowingly has direct physical control of a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.
The courts in Indiana have stated the following: Constructive possession is the intent and capability to maintain dominion and control over the illegal item. Proof of a possessory interest in the location where the illegal drugs are found is adequate to show the capability to maintain control over them. When possession of the location is not exclusive, the inference of intent and capability to maintain dominion and control over the illegal item must be supported by additional circumstances pointing to an accused's knowledge of the nature of the illegal item and their presence. Davenport v. State (1984)
What type of additional circumstances are the police and prosecutors going to try to use to show someone was in possession of an illegal item found in a car? If a firearm is found under the seat or between the cushions of where someone is sitting, if cocaine is found in the trunk of a car next to bags belonging to a passenger, or inside one of the passenger's bags. Is the item in a location that someone in the car might have been able to reach it? Are there fingerprints or DNA evidence on a weapon?
Consider the definition cited above as it continues with the following language:
Instruction No. 14.3060. Possession defined (continued):
Possession may be sole or joint. If one person alone has actual or constructive possession of an item, then possession is sole. If two or more persons share actual or constructive possession of an item, then possession is joint. Possession may be actual or constructive, and either alone or jointly with others.
Further, with the definition applying to possession cases, it is possible for two or more people to be in possession of the same item. However, there must be evidence that connects those two people to the same item.
Consider the following criminal charges related to Possession:
35-48-4-7. Possession of a controlled substance.
(a) A person who, without a valid prescription or order of a practitioner acting in the course of the practitioner's professional practice, knowingly or intentionally possesses a controlled substance (pure or adulterated) classified in schedule I, II, III, or IV, except marijuana, hashish, salvia, or a synthetic cannabinoid, commits possession of a controlled substance, a Class A misdemeanor, except as provided in subsection (b).
(b) The offense is a Level 6 felony if the person commits the offense and an enhancing circumstance applies.