What if I did not Physically Possess the Marijuana?

Can I Still be Convicted if the Drugs were not found on me?

There are countless different factual situations that can give rise to a marijuana possession charge in Monmouth County but one of the most common by far is the standard motor vehicle stop, where in which the marijuana is not actually found on someone but in common area. Here is a brief fact pattern that we tend to see all to often.

Assume someone is operating a motor vehicle on Route 35 in Middletown. Located inside the vehicle is three passengers. They are pulled over for speeding and a subsequent search of the vehicle is conducted based on what the officer claims is “overwhelming smell of raw marijuana”. The marijuana is located underneath the front passenger seat. More often than not, everyone located inside the vehicle will be charged with the possession of marijuana, unless someone takes responsibility for the marijuana.

Under this scenario, nobody actually possessed the marijuana in question, as it was located under the passenger seat on not physically on someone persons.  When this situation arises, the prosecution obviously cannot proceed to prove their case beyond a reasonable doubt under the standard “actual possession” theory. For reference purposes, actual possession is a situation in which the prosecution can prove that the individual knew what the marijuana was and that it was actually on their persons at the time of the arrest. Rather, they must attempt to proceed under what is known as either a constructive possession or joint possession theory. Under these theories, the prosecution has the ability to use the circumstances surrounding the arrest in order to prove that the individual possessed the marijuana in question. Those circumstances can include but are not limited to the location of the marijuana and any statements made by the individuals involved. If statements are made, there could be a Miranda Warnings violation as well. It is also important to note here, that based under these theories, more than one person can be found to be in “constructive” or “joint” possession of the same marijuana.

Pursuant to NJSA 2C:2-1, constructive possession “means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it.” So, in order to be able to proceed under this theory, the prosecution needs to establish not only that the Defendant was aware of the fact that the marijuana was present in the motor vehicle but also the fact that they had underlying intention to actually possess it at some point. Conversely, if the state is seeking to proceed under the “joint” possession theory, the state will have to establish the individuals shared the same knowledge that allowed them to establish the constructive possession theory. It is also important to discuss here, that the prosecution can use these same theories to establish possession not just in marijuana cases but any other possession case as well, including but not limited too the possession of heroin, the possession of cocaine, the unlawful possession of a weapon, receiving stolen property and the possession of marijuana with the intent to distribute.

Marijuana Possession Lawyer in Middletown New Jersey

As you can tell, trying to prove under a constructive or join possession theory can prove to be very problematic for the prosecution. If you have been arrested and charged with a criminal offense in Monmouth County, the Keith Oliver Criminal Law can help. Our attorneys have represented countless clients charged with various crimes where in which the prosecution was attempting to prove their case under the constructive possession theory. These types of cases open the door for an experienced criminal defense attorney to really make a difference. To set up a consultation today, please contact our Middletown office at 732-858-6959 or you can email us. Our attorneys offer free initial consultations, where we will go over your specific facts and give you our honest feedback on how we think we can be of assistance.

Author: Keith G. Oliver

Founding partner Keith G. Oliver has a passion for helping people who are caught up in the criminal justice system. He believes that everyone has a right to be presumed innocent, and that one mistake shouldn’t define a person forever. This passion drives Mr. Oliver to tirelessly fight for his clients and pursue the best possible outcome in every case.