Aug 19

Constructive Possession


Possession is to be construed strictly as signifying intentional control and dominion. State v. McCoy, 116 N.J. 293, 299 (1989). In McCoy, the court characterized it as “the ability to affect physically and care for the item during a span of time”. Id. Possession is separate from knowledge. A person may possess a thing unknowingly in which case he or she will not be criminally liable for possession. See, State v. Pena, 178 N.J. 297, 304-305 (2004). A person may also be in proximity and have knowledge that possession would be criminal but not possess it. As in State v. McCoy, the Court found an insufficient factual basis for a guilty plea where the Defendant, who was charged with possession of stolen property, merely placed his hands on a car driven by a friend, even though he knew the car to be stolen and he intended to ride in it. State v. McCoy, 116 N.J. at 303-304. Likewise, in State v. Moore, 330 N.J. Super. 514 (App. Div 1992), the State conceded that a mere passenger in a stolen car, even one who may have known the car was stolen, did not have possession of the car to sustain a conviction of receiving stolen property. Regarding drugs, the mere presence of drugs in a bedroom shared with others is insufficient proof of possession where nothing else tied the defendant to the drugs. State v. Milton, 225 N.J. Super. 514 (App. Div. 1992).

Constructive possession arises out of a person’s conduct with regard to the item in question. State v. Schmidt, 110 N.J. 258, 268 (1988). It does not require immediate control and dominion but the capacity to gain almost immediate physical control by direct or indirect means and the ability to affect the item during the time in question. Id. at 270. A person’s mere presence at a location where contraband is found is not determinative of constructive possession. State v. $36,560.00, 289 N.J. Super. 237, 261 (App. Div. 1996), certif. den. 147 N.J. 579 (1997). In State v. Shipp, 216 N.J. Super. 662, 664-665 (App. Div. 1987) the Court held that the vehicle driver was not deemed to be in possession of heroin found in a bag of the rear seat passenger, who was also his stepmother.

In State v. Zapata, 297 N.J. Super. 160, 177-178 (App. Div. 1997), certif. den. 156 N.J. 405 (1998) the defendant was convicted of second degree possession with intent to distribute cocaine after police found cocaine in the rear passenger seat and inside the air conditioning vents supporting “the inference that the narcotics were constructively possessed by all of the passengers because no one possessed the narcotics more than any other person.” Id. at 178 (emphasis added). The Zapata Court stressed that in finding constructive possession in that case, the “drugs located in the back seat were within the defendant’s reach”. Id. See also, State v. Hurdle, 331 N.J. Super 89 (App. Div. 1998). In State v. Schmidt, supra, 110 N.J. at 273 the Court held that where the drugs in question were in the actual possession of a co-defendant and no clear nexus over that person could be shown, as in the case of a courier and a drug dealer, there was no constructive possession.

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