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Constructive Possession of Contraband

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Constructive possession of contraband - Image of cocaine and rolled paper money

Constructive possession of contraband

Constructive possession of contraband brings same culpability as actual possession, says Fairfax criminal lawyer

Constructive possession of drugs, illegal guns, or other contraband is no less a crime than actual possession of contraband. As a Fairfax criminal lawyer, I know that the foregoing legal truism alone is sufficient to make people think twice about those they choose to associate with.

Being present with contraband in the open can be sufficient to convict for drugs and weapons

Virginia drug and felony handgun defendant Malcolm Jordan learned through his conviction that one may be convicted of constructive possession of contraband. Law enforcement conducted surveillance on the home for which Jordan had a key and made frequent visits. Police obtained a search warrant of his house as a suspected drug sales house after seeing high foot traffic entering the house for but a few minutes at a time, and having a confidential informant (likely a cooperator / snitch) buy marijuana there. Jordan v. Commonwealth of Virginia, Record No. 0863-18-1 (Va. App., Oct. 22, 2019) (unpublished).

Beware the risks of being in a house filled with contraband out in the open and your name on bills sent to that address

In executing the search warrant in Jordan’s  constructive possession case, police found out in the open a handgun, a digital scale, and packaging materials. Inside a dresser, police found ecstasy / MDMA, cocaine, marijuana, cash, and more packaging material. Police also found a shotgun and mail addressed to Jordan at the address where the search warrant was executed, including a utility bill, and a photo of Jordan by a prescription pill bottle in a woman’s name.  Unfortunately for Jordan, police found nobody’s name other than Jordan’s among the mail, and found evidence of nobody but Jordan using a key to enter the house. This was sufficient for Jordan to reject the defendant’s challenge to the sufficiency of the trial evidence against him for constructive possession.

The Virginia Court of Appeals affirms Jordan’s constructive possession conviction

At his bench trial, based on constructive possession law, the judge found Jordan guilty of possession of a firearm by a violent felon pursuant to Va. Code § 18.2-308.2; (2) possession of a firearm while in possession of a Schedule I or II controlled substance, pursuant to Va. Code § 18.2-308.4(A); (3) possession with intent to distribute marijuana, pursuant to Va. Code § 18.2-248.1; (4) possession of a Schedule I or II controlled substance, pursuant to Va. Code § 18.2-250; and maintaining a common nuisance, pursuant to Va. Code § 18.2-258.

In affirming Jordan’s conviction, the Virginia Court of Appeals stated: “Constructive possession may be established by ‘evidence of acts, statements, or conduct of the accused or other facts or circumstances,’ which show the defendant’s awareness of ‘both the presence and character of the [firearm or substance] and that it was subject to his dominion and control’… Although proximity to illegal substances, ownership of the premises, and occupancy of the premises where illegal substances are found are insufficient by themselves to establish possession, they are factors to be considered… The defendant must be aware of both the character and the presence of illegal drugs and firearms.” Jordan (citations omitted).

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, DUI, and drug prosecutions. For a free in-person consultation with Jon Katz about your criminal case pending in court, please call Jon’s staff at 703-383-1100 to schedule a strictly confidential meeting.