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What is “constructive possession” of a handgun or a controlled dangerous substance?

Maryland Criminal Attorney What exactly does it mean to be in “constructive possession” of contraband such as drugs or illegal weapons in Maryland? I was faced with this fairly common legal issue in a case in the District Court for Baltimore County in Catonsville this week. The facts of the case were as follows:

My client was operating a motor vehicle in the Catonsville area of Baltimore County one day this past summer. The police noted in their report that the car caught their attention because the operator was not wearing his seat belt. (I’m sure that the fact that he was a young black male had nothing to do with it). The officer’s turned around and followed the vehicle and made several other observations such as speeding and frequent lane changes. They pulled the vehicle over and identified my client as the driver and sole occupant of the vehicle. My client produced a valid driver’s license as well as the registration which confirmed that the car was registered to his father.

The officer’s then claim that they smelled the odor of burning marijuana coming from the car. The Court of Appeals ruled long ago that the smell of burning marijuana alone constitutes probable cause to search a motor vehicle. Coincidentally, of course, the instances of police officer’s claiming to smell burning marijuana increased exponentially after that decision by the Court. It has always been curious to me that in many of these cases, including this one, the police officers never find any burning marijuana nor do they even claim that the driver was under the influence of marijuana.

At this point the officers say that they remove my client from the car and recover trace amounts of marijuana from the back seat carpet. They then arrest my client and conduct a search incident to arrest of the vehicle and find a loaded 32 caliber handgun in the map pocket on the back of the passenger seat. My client was charged with several minor traffic violations as well as possession of marijuana and illegally transporting a handgun in the vehicle. He was taken back to the police station where he was read his Miranda rights at which point he waived his right to remain silent and admitted the marijuana was his. He denied ownership or even knowledge of the presence of the handgun in the vehicle. The weapon was checked for fingerprints but no usable latent prints were recovered.

My client was clearly not in “possession” of the handgun according to the common understanding of the word “possession”. The handgun was not in his hand or stuffed in his pants or in his pocket. Instead it was in a vehicle that he was operating. Under Maryland law a person can be in “constructive possession” of contraband such as a handgun or drugs even if it isn’t in his actual possession. The Court laid out a four part test for trial courts to apply to determine whether or not a person is in constructive possession of an item not in his actual possession. The factors are:

1. Did the person charged have an ownership or possessory interest in the property (in this case an automobile) where the contraband was recovered?

2. Was the contraband in close proximity to the person charged?

3. Was the property in plain view?

4. Is there any evidence of actual possession or enjoyment of the contraband by the defendant

In this case I argued to the District Court Judge that the answer to all four questions was no. My client was certainly in possession of the vehicle but he does not own it. The weapon was not under his seat or in the door pocket or center console or anywhere in the front seat area of the passenger compartment. The handgun was not in plain view but was instead secreted in the map pocket of the passenger seat. And finally, there was no evidence of actual possession. For instance the officer did not see my client make any movements towards that pocket when he was being pulled over as is often alleged in police reports and is probably true in many instances. My client’s fingerprints were not on the weapon and he denied possession of it. I also brought up the fact that the officer did not even bother to contact my client’s father to ask him whether the gun was his.

The judge agreed with my arguments and found him not guilty of illegally transporting a handgun in a vehicle. I conceded guilt by my client on the marijuana because he had admitted that it was his. He received probation before judgment and a $100 fine.

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