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What Evidence Must Be Shown To Prove “Constructive Possession” Of Illegal Drugs In Michigan?

by | Mar 21, 2022 | Controlled Substance Offenses |


A person accused of possessing illegal controlled substances in Michigan can be convicted if the prosecutor can prove beyond a reasonable doubt that he or she knowing had “actual possession” or “constructive possession” of the drugs.  Actual possession means that the person knowingly had the illegal drugs in their hands, in their pockets, or otherwise on their person.  But what if the person is only near the drugs in the same room as the drugs?  What if other people are also present near the drugs?  What does it mean to be in “constructive possession”?

The Michigan Supreme Court has stated that “possession” means the person has knowledge of the presence and nature of a certain object, and that the person has “some degree of physical dominion or right of control” over said object.  People v Germaine, 234 Mich 623, 627; 208 NW 705 (1926).  The person does not have to actually own the drugs to be in possession.  Moreover, possession may be joint, with more than one person actually or constructively possessing a controlled substance.  People v Williams, 188 Mich App 54, 57; 469 NW2d 4 (1991).

In People v Iaconis, 29 Mich App 443; 185 NW2d 609 (1971), the defendant was arrested at a residence in Dearborn, Michigan after police obtained a search warrant and raiding the premises.  The defendant was in a small living room where heroin was located, to which several co-defendants were in close proximity.  On appeal, the defendant challenged his conviction for possession of heroin partly on the grounds that he did possess the drugs as required by law.  The Michigan Court of Appeals disagreed:

“It is clear that… the People presented sufficient facts for the jury to find “possession” and “control” of heroin as proscribed by [statute]. The people presented evidence tending to show among other things that, on several occasions, while the premises in question were under surveillance, defendants frequently arrived at the premises and remained there for short periods of time; that certain of the defendants left the premises in a manner which indicated to an officer on the scene, who testified that he had had experience in observing persons under the influence of heroin, that they were under such an influence; that when defendants, as well as others entered the premises, they often went through a procedure, as they did on the night of the raid, i.e., they would knock on the door, look through a window fan, knock again, after which a blind was opened in a window, and closed again, and the door was then opened to them; that, on the night of the raid defendants were found in a small room in close proximity to heroin and narcotic paraphernalia; that one defendant, on the night of the arrests, had blood marks on his shirt and a raised black and blue mark and two red dots on his arm, and another had scars on the inner portion of both arms.”  29 Mich App at 459.

In People v Wolfe, 440 Mich 508; 489 NW2d 748 (1992), the defendant was arrested after an undercover officer (with a search warrant) entered an apartment with several other police officers and found the defendant, three other men, one woman, and a juvenile along with a loaded 12-guage shotgun and several packets of crack cocaine.  Defendant was charged and convicted of possession with intent to distribute.  On appeal, the defendant challenged his conviction on the basis that there was insufficient evidence that he possessed the drugs.  The Michigan Supreme Court disagreed and found that constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the contraband.

“In this case, at least three factors were shown that linked the defendant with the crack cocaine found at the Sixth Street apartment.”

“First, there was evidence that defendant Wolfe was in control of the premises where the drugs were found. Wolfe testified that he invited the other men to Saginaw and arranged to meet them at the Sixth Street apartment. He testified that the others who came from Detroit that day did not know where the apartment was located. Defendant Wolfe planned to show them where it was, and, as Rogers testified, he did show them. According to Rogers, he and the others were flagged down by Wolfe from the porch of the apartment when he saw them approaching from the street. Further, Wolfe was the only person found to have a key to the apartment. Surely, it was reasonable for the jury to infer that the evidence demonstrated more than [Wolfe’s] mere presence at the apartment as a casual invitee. Indeed, because testimony of the officers supported the conclusion that Wolfe had the only key to the apartment and was the only one of the men from Detroit who knew the precise location of the apartment, a rational jury could logically have inferred from all the circumstances that, among those found in the apartment, Wolfe was the one with control over the premises.”

“Second, Wolfe fled with the other men into a back bedroom when the police entered the apartment to search it. There was evidence that attempts were being made in that bedroom to conceal the crack cocaine…”

“Third, there was substantial evidence that Wolfe was working with the other men in this crack-selling operation. Evidence was presented that a sale of similarly packaged cocaine had been made from the apartment earlier in the evening and that Wolfe was involved in that sale. The undercover officer who purchased the crack heard other voices in the apartment at the time of the purchase. Rogers testified that he and Wolfe were at the apartment around the time of the sale.  Wolfe subsequently was found in possession of the two $5 bills that were used to purchase the cocaine. Further, Wolfe admitted that he knew there was crack cocaine in the apartment.[9] More significantly, Wolfe arranged the meeting in Saginaw at the apartment. Although he denied it, one of the officers testified that Wolfe was in possession of a beeper at the time of the search. It would be reasonable to infer that he carried the beeper to stay in contact with the other men who traveled together from Detroit and were shown to have the number of that beeper. In light of these facts, we cannot agree with the Court of Appeals that there was no evidence linking defendant to the prior drug sale to the undercover officer, nor can we agree that the prosecution failed to provide any connection between defendant Wolfe and the cocaine found in the apartment. Because strong evidence was presented connecting Wolfe with the vacant apartment, the crack cocaine in the apartment, and the other men in the apartment (at least one of whom unquestionably sold cocaine from the apartment), a rational jury could have concluded that Wolfe knew the cocaine was present, and that he had the right to exercise control over it.”  440 Mich at 522-524.

Constructive possession can be broader than most people expect.  This can lead to multiple individuals being convicted for the same narcotics because a jury may conclude that each of them have “dominion” or “control” over it.  This also makes it difficult to beat the charges by trying to pin the drugs on another person present because everyone can be deemed equally guilty.

However, a defendant with a good criminal defense lawyer on their side can utilize several methods to defeat a drug possession charge.  Some possible defenses include, but are not limited to, the following:

  • UNLAWFUL SEARCH AND SEIZURE: If police entered the premises without a warrant or other valid exception to the Fourth Amendment, then the drugs may be seized illegally and not admissible in court. If the court grants the defendant’s motion to suppress these illegally seized drugs, then the prosecutor will not be able to sustain their case and will be forced to dismiss.
  • MIRANDA VIOLATIONS: A person in custody must be informed of their Miranda rights before any kind of interrogation takes place. This includes being notified of the right to remain silent and to have an attorney present during questioning.  If the police obtain information from the defendant related to the drugs found without notifying them of these rights, then those statements can be thrown out by the judge.
  • ENTRAPMENT: If the police create a situation to cause a person to commit a crime that he or she had no previous intent to commit, then the resulting crime may be defeated by the defense of entrapment. For example, if an undercover officer encourages someone to go to a drug dealer and purchase narcotics with them when there was no desire to do so before, then the charges may not be sustainable and may be thrown out before trial.

Drug charges are difficult to fight, but a skilled lawyer in your corner can explore all of the defenses available to you and hold the prosecutor to their burden of proving guilt beyond a reasonable doubt.  Even if the evidence against you is strong, a criminal defense lawyer that points out the holes in the prosecutor’s case can negotiate a favorable plea bargain for you to minimize the consequences.

If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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