A very common situation I see as a drug crime lawyer is where there are three or four passengers riding together in a vehicle and there happens to be illegal drugs in that vehicle. Sometimes the driver is the owner of the vehicle. Sometimes the owner is not present. If the police stop the vehicle and discover the drugs, who can they charge with possession? If the drugs are in someone’s pocket, the police will almost certainly charge that one individual with possession and not charge the others.
But what about the times when there is a bag of marijuana or cocaine in the vehicle that is equally accessible to the driver and to every passenger? Under Washington State law, possession of a controlled substance can be either 1) actual physical possession where you are actually holding the substance or it is in your pocket or 2) “constructive possession.”
Constructive possession is a legal term that means that you exercised dominion and control over something. If the police and the prosecutor can show that you exercised dominion and control over the drugs, you can be found to have had constructive possession and be charged with a violation of the Uniform Controlled Substances Act (VUCSA). Just because you are the owner of the vehicle does not mean that you are in constructive possession of drugs if there are drugs present in the vehicle. The Washington courts have ruled that the prosecutor must prove that you exercised dominion and control over the drugs, not just the area or the premises. This applies to homes as well as vehicles.
Constructive possession means something more than that you merely knew that drugs were present in the vehicle or home. It also means something more than mere proximity- that you were close in distance to the drugs. The courts have said that merely being close to drugs and knowing that the drugs are present are not, by themselves, factors that can make you in constructive possession of the drugs.
The court uses a “totality of the circumstances” approach in which they consider a number of factors in determining whether you exercised dominion and control over the drugs. With this approach, constructive possession is determined on a case by case basis. The more you exercise dominion and control over the area that the drugs are in, the more likely you will be found to be in control of the drugs. Also, the more permanent your exercise of dominion and control over the premises, the more likely you will be found to be in constructive possession of the drugs that are found on the premises. That means that an overnight guest who is staying in just the basement will be less likely to be found in constructive possession of drugs that are found upstairs when compared to a tenant who has lived there continuously for one year with unlimited access to the house.
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