Constructive Possession of Drugs

One of the most frequently litigated issues in North Carolina drug cases is constructive possession. Jeff wrote about one case (here ^[1]) over a year ago. My research shows no less than eleven published cases in the last two years (click here ^[2] for a full case listing in my online Criminal Case compendium), including one earlier this month by the North Carolina Court of Appeals in State v. Terry ^[3]. Because the issue arises with such frequency, I’ll take this opportunity to set out the relevant law.

Possession may be actual or constructive. A defendant has actual possession of contraband if it is on his or her person, the defendant is aware of its presence, and either alone or with others has the power and intent to control its disposition or use. State v. Loftis, 185 N.C. App. 190 (2007); State v. Reid, 151 N.C. App. 420 (2002).

Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the contraband. State v. Miller, 363 N.C. 96 (2009); State v. Matias, 354 N.C. 549 (2001). The defendant may have the power to control either alone or jointly with others. Miller, 363 N.C. 96. When a defendant has exclusive possession of the place where or item in which the contraband is found, such as a home or a vehicle, this ordinarily is sufficient to establish the requisite intent and capability to maintain control and dominion over the contraband required for constructive possession. State v. Butler, 356 N.C. 141 (2002); Matias, 354 N.C. 549. Thus, if drugs are found in a closet in the defendant’s home and the defendant is the sole resident of the home, this will constitute sufficient evidence of constructive possession to take the issue to the jury.

Many times, however, contraband is found in a place over which the defendant does not have exclusive possession. For example, drugs may be found in a vehicle driven by one person and carrying several others as passengers. To establish constructive possession, it is not necessary to show that a defendant has exclusive control of the premises. State v. McLaurin, 320 N.C. 143 (1987). However, when the defendant does not have exclusive possession of the place where or item in which the contraband is found, the State must show other incriminating circumstances to establish sufficient evidence of constructive possession. Miller, 363 N.C. 96 (other incriminating circumstances shown); McLaurin, 320 N.C. 143 (insufficient evidence of constructive possession when drug paraphernalia was found in a house over which the defendant had non-exclusive possession and the State offered no incriminating evidence linking her to the paraphernalia).

The determination of whether sufficient incriminating circumstances exist to support a finding of constructive possession is fact-specific, Miller, 363 N.C. 96; the courts consider the totality of the circumstances and no one factor controls. State v. McBride, 173 N.C. App. 101 (2005). Among the factors considered by the courts are:

• The defendant’s proximity or lack thereof to the contraband. Compare Miller, 363 N.C. 96 (evidence was sufficient to establish constructive possession when, among other things, cocaine was found within the defendant’s reach), with State v. Autry, 101 N.C. App. 245 (1991) (evidence was insufficient when the defendant was found upstairs in a small hallway or landing in the premises; the drugs were found in an upstairs bedroom, with two other people present and the evidence did not place defendant in same room with the cocaine). However, mere presence at a location where drugs are found does not create an inference of constructive possession. State v. Minor, 290 N.C. 68 (1976) (“The most the State has shown is that defendant had been in an area where he could have committed the crimes charged. Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do.”); State v. Ferguson, __ N.C. App. __, 694 S.E.2d 470 (2010) (mere presence is insufficient); Autry, 101 N.C. App. 245 (same).
• Whether or not the defendant owned or occupied the location where or had control of the item in which the contraband was found. Compare State v. Fortney, __ N.C. App. __, 687 S.E.2d 518 (2010) (evidence was sufficient with respect to drugs found in a motorcycle carry bag when, among other things, the defendant borrowed the motorcycle from the owner and was driving it), with State v. Finney, 290 N.C. 755 (1976) (evidence was insufficient when, among other things, although the defendant leased an apartment where marijuana was found, the defendant had not been in the apartment for forty-four days and there was evidence that he had sublet it to another person who was living there and that person admitted sole possession of the marijuana).
• The defendant’s opportunity or lack thereof to dispose of or place the contraband in the location where it was found. Compare Butler, 356 N.C. 141 (evidence was sufficient when, among other things, a cab driver testified that the defendant was the only person who had been in a position to place a package containing drugs under the drivers’ seat), with State v. Biber, __ N.C. App. __, 698 S.E. 2d 476 (2010) (evidence was insufficient when, among other things, there was no evidence that the defendant was ever in a position to secrete the contraband in a motel bathroom light fixture).
• Whether or not the defendant’s personal items were found at the location where the contraband was located. Compare Miller, 363 N.C. 96 (evidence was sufficient when, among other things, the defendant’s birth certificate and state-issued identification card were found in the bedroom where cocaine was discovered), with State v. Moore, 162 N.C. App. 268 (2007) (evidence was insufficient when, among other things, five individuals, including the defendant, were found in or near a mobile home containing drugs; the home was owned by someone else and officers did not find any documents or other items tying the defendant to the residence).
• Whether or not the defendant fled or engaged in other suspicious behavior. Compare State v. Hudson, __ N.C. App. __, 696 S.E.2d 577 (2010) (evidence was sufficient when, among other things, the defendant acted suspiciously when his truck was stopped by an officer; he exited with his back to the officer and hands up, unusual activity under the circumstances; his hand shook when he handed over his information; he was sweating despite cold weather; and an officer could see his carotid artery pulsing), with Ferguson, __ N.C. App. __, 694 S.E.2d 470 (evidence was insufficient when, among other things, it did not show that the defendant behaved suspiciously).
• Whether or not the defendant engaged in drug activity or was impaired by drugs. Compare McBride, 173 N.C. App. 101 (evidence was sufficient when, among other things, officers, who were responding to a call about drug activity, approached the motel in question and observed what appeared to be a drug transaction between defendant and another person; the transaction occurred outside of the motel room in question; the defendant smelled of crack cocaine and had the characteristics of someone under the influence of the drug), with State v. Balsom, 17 N.C. App. 655 (1973) (evidence was insufficient when, among other things, there was no evidence that the defendants were under the influence or users of narcotics).