Constructive Possession vs. Actual Possession

A passenger might be in possession of drugs under the constructive possession theory.

Michigan Criminal Defense Attorneys - Group

Possession in Michigan Can Be Actual or Constructive

A recent United States Court of Appeals decision clarified a longstanding dispute between defense lawyers and prosecutors regarding “constructive possession.” “Constructive possession” is typically defined as a situation where an individual has actual control over something without physical control of that thing (the allegedly illegal item). In Michigan or federal court, a person with constructive possession is just as guilty as someone with actual, physical possession. This would come up frequently when there is an allegation of a passenger in possession of drugs.

Both state prosecutors and Assistant United States Attorneys frequently argue that the passenger in a car is in “constructive possession” of drugs or weapons in a car merely because of that person’s proximity to the contraband. This argument has been used in cars, houses, and businesses when someone is physically near something found or believed to be illegal. Drug crimes defense lawyers with LEWIS & DICKSTEIN, P.L.L.C. have countered this argument over the past decades by arguing that proximity alone is insufficient to show constructive possession. We have argued that something more must be required to prove a connection between the passenger in the car and proximity to the drugs or weapons.

A Recent Constructive Possession Example a Passenger in Possession of Drugs

In the recent case of United States v. Jorge Esqivel-Ortega, Mr. Ortega, a passenger in a vehicle, was convicted at trial for possession with intent to deliver 15 kilograms of drugs, specifically cocaine. He was the passenger in a car with the drugs hidden in a secret compartment in the bumper. The prosecution’s theory was that “he must have known,” but there was no additional direct or circumstantial evidence that he was aware or knew of the contraband.

The court found that a person accused of being a passenger in possession of drugs may not be convicted unless there is evidence connecting him with the contraband other than his mere presence in the vehicle. The court’s opinion referenced other cases where it has been found that even the smell of marijuana in a car is insufficient to show that a passenger is aware of marijuana found within a car as the smell could have lingered from a previous occasion.

The conviction, in this case, was reversed.

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Penalty for Possession of Drugs by Vehicle Passenger

The type and amount of a controlled substance impact the potential penalty for illegal possession of the substance. The government is more likely to charge someone, including a passenger in a vehicle, with possession with intent to distribute drugs if the amount possessed exceeds what they consider a personal use quantity. The penalties for simple possession of the most common controlled substances are as follows:

  • Prescription Drug Possession – Possession of up to 25 grams of Schedule I or Schedule II drugs carries penalties of up to four (4) years in prison, years of probation, and fines up to $25,000.
  • Adderall Possession – Possession of Adderall without a prescription is punishable by up to two (2) years in prison, years of probation, and a fine of up to $2,000.
  • Cocaine Possession – Possession of cocaine in Michigan is a felony. The penalty for possession of under 50 grams is up to four (4) years in prison, years of probation, and fines of up to $25,000. More significant quantities carry significantly lengthier potential penalties.
  • Ecstasy Possession – This felony offense is punishable by up to 10 years in prison, lengthy probation, and a $15,000 fine.
  • Methamphetamine Possession – Felony possession of methamphetamine carries a maximum sentence of 10 years, five (5) years of probation, and a $15,000.00 fine.
  • Heroin Possession – Possession under 50 grams is punishable by four (4) years in prison, probation, and a $25,000 fine. These penalties increase for amounts greater than 50 grams.
  • Analog Substance Possession – Analogs are known as “Designer Drugs.” Possession of designer drugs is a felony punishable by up to two (2) years in prison, years of probation, and a $2,000 fine.
  • LSD, Peyote, or any Schedule V Controlled Substances Possession – Simple possession of these substances is a misdemeanor punishable by up to one year in county jail, two (2) years of probation, and a $2,000 fine.

How a Drug Crimes Defense Attorney can help you

Great drug crime defense attorneys, like those with LEWIS & DICKSTEIN, P.L.L.C., utilize a comprehensive and dynamic approach when defending their clients, both in and out of court. This process begins with thoroughly evaluating the charges and the circumstances under which they arose. The defense attorney takes a deep dive into every piece of evidence presented by the prosecution and scrutinizes it for any potential irregularities or weak spots. They might challenge the legality of searches or seizures, ensuring the police did not violate their client’s Fourth Amendment rights. Any misconduct or procedural error could result in the suppression of the evidence, dramatically impacting the case’s outcome and leading to the dismissal of all charges. Additionally, aggressive lawyers explore potential defenses, such as mistaken identity, lack of intent, or medical necessity, tailoring them to the client’s situation.

Out of court, respected and successful defense attorneys can engage in plea negotiation with prosecutors, a critical aspect of criminal defense. They leverage their knowledge of the law, the strength or weakness of the evidence, and their skills as negotiators to argue for reduced charges, lesser sentences, or even the dismissal of the case. Furthermore, they ensure their clients understand all the potential consequences of different decisions. This includes the possible legal outcomes and the impacts on their life, family, career, and future. They guide their clients through the often overwhelming criminal justice system, providing counsel and comfort in what may be one of the most challenging times of their lives. Being empathetic and maintaining excellent communication with the clients is thus crucial in their role as defense attorneys.

Michigan Criminal Defense Attorney

Michigan Drug Possession and Delivery Defense Attorneys

The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. is committed to providing the highest possible level of defense and protection for our clients charged in state and federal courts in Michigan with felony and misdemeanor charges. Our highest priority is to get charges dismissed when possible. If you are accused of being a passenger in possession of drugs or of any felony or misdemeanor criminal offense, we can help you. Call us for a free consultation. We will take the time to talk with you, answer your questions, and work with you to develop a winning case strategy.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.

We will find a way to help you and, most importantly,
we are not afraid to win!

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