The Theory of Constructive Possession in Criminal Matters

 Posted on November 25, 2013 in Illinois Laws

There are multiple criminal offenses in Illinois that include the concept of possession as a basis of criminal liability. Perhaps criminal offenses involving contraband, such as weapons or illegal narcotics, are those crimes involving possession with which we are most familiar. The law extends the definition of possession to include both actual possession as well as constructive possession.

The Possession Rules in Illinois

In order to impose criminal liability on the basis of constructive possession in Illinois, the facts of the case must support the finding that the defendant knew of the existence of the contraband, and also was in a position to exercise control over it despite the fact that the defendant may not have had physical control of the contraband. In other words, the theory of constructive possession involves demonstrating that the defendant has both the intent and the capability to maintain control and dominion over the illegal item. Cases involving constructive possession typically include owners or tenants of a home, car, or apartment where contraband is found. This definition has been interpreted and applied in different ways by courts in Illinois.

In People v. Schmalz, the Defendant was charged with possession of a controlled substance and possession of drug paraphernalia after she was discovered by a police officer in a room with three other people. The officer saw three clear plastic bags of leafy substance (later identified as cannabis) and three bongs on the floor, within the defendant’s reach. Defendant was arrested, and the officer discovered additional cannabis and additional paraphernalia in other areas of the house. It was established that Defendant neither rented nor regularly stayed in the apartment where the contraband was found. The Circuit Court returned a guilty verdict and Defendant appealed. The Circuit Court reversed the decision, finding that while the Defendant had knowledge of the contraband, the State failed to establish that the defendant had any physical control over it, nor did the State prove that the Defendant attempted to exercise dominion over the contraband by trying to hide or conceal it. Further, the Court found that the State presented no evidence, including a lack of fingerprint evidence, that the Defendant had brought the contraband into the apartment or how long it had been there. No contraband was found on the Defendant’s person or in her belongings. As a result, Defendant’s conviction was overturned.

It is important to note that while the appellate court in Schmalz did not find evidence sufficient to establish constructive possession, many cases exist in Illinois where courts have convicted the defendant under different facts and circumstances. An experienced criminal defense attorney in Illinois can help you to understand the law as it applies to the facts of your specific case, while also providing valuable insight according to their experience in criminal defense.

If you or someone you know has been charged with a crime involving possession of contraband in the Chicago area, contact us today to discuss your options and preserve your rights.