CONSTRUCTIVE POSSESSION IN

TENNESSEE CRIMINAL OFFENSES

If You Have Been Charged With a Crime that Requires the Prosecution to Prove Possession Based

On a Constructive Possession Argument It Is Crucial for You to Understand What Constructive Possession Is and How the State of Tennessee Will Try to Prove It

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Possession is a primary element in many criminal offenses in the State of Tennessee. For

example, the offense of “Possession of a controlled substance” clearly requires the State of

Tennessee to prove that the defendant “possessed” the controlled substance. At first glance,

the word “possession” seems easy enough to define and prove; however, within the law the

word “possession” remains an elusive concept.

The reason for this is that possession can be actual or constructive. If you have been charged

with a crime that requires the prosecution to prove possession based on a constructive

possession argument it is crucial for you to understand what constructive possession is and

how the State of Tennessee will try to prove it. Only an experienced Tennessee criminal

defense attorney can review the unique facts and circumstances of your case; however, a

basic understanding of constructive possession in general may also be helpful.

The Burden of Proof – What the Prosecution Must Prove

In a criminal prosecution the State, by the prosecuting attorney, has the burden to

prove the defendant guilty beyond a reasonable doubt. In order to accomplish this goal,

the prosecuting attorney must convince a jury that each and every element of the

offense has been proven beyond a reasonable doubt. For example, Tennessee Code,

39-17-418 – Simple Possession or Casual Exchange reads as follows:

“It is an offense for a person to knowingly possess or casually exchange a controlled

substance, unless the substance was obtained directly from, or pursuant to, a valid

prescription or order of a practitioner while acting in the course of professional

practice.”

For the State of Tennessee to convict someone of this offense the prosecutor must

prove, among other things. That the defendant “knowingly possessed or casually

exchanged a controlled substance”. (Emphasis added)

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Actual Possession

If asked what the word “possession”

means, most people would provide a

definition of what the law considers actual

possession. Actual possession, in legal

terminology, means that an individual has

direct and physical control over the item in

question. For a prosecuting attorney,

proving actual possession is usually fairly

easy. Imagine a law enforcement officer

pulls over an individual for a traffic stop

and asks the individual to exit the vehicle.

The officer then conducts a search and

finds a baggie full of heroin in the

suspect‟s pants pocket. The suspect had

actual possession of the contraband in that

case.

Constructive Possession

If all prosecutions involved actual possession the State of Tennessee would never lose a trial.

Unfortunately for the State, not all prosecutions are that simple. Frequently, a suspect is

arrested and contraband found within the vicinity of the suspect but not directly on the

suspect. The police officer may be certain that the contraband belonged to the suspect;

however, proving ownership of the contraband requires making a constructive possession

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argument at trial because the item in question was not found under the defendant‟s physical

control. Defining constructive possession has been a challenge that courts have struggled with

for decades. In Tennessee, the courts have defined the term as follows:

“Constructive possession occurs when a person knowingly has “„the power and the intention at

a given time to exercise dominion and control over an object, either directly or through

others.‟” State v. Williams, 623 S .W.2d 121, 125 (Tenn. Crim. App. 1981) (quoting United

States v. Craig, 522 F.2d 29, 32 (6th Cir. 1975)).”

The key words in the definition are “dominion and control”. Therefore, for the prosecuting

attorney must prove that a defendant had dominion and control over the contraband to be

found guilty of the crime in question.

Proving Constructive Possession – Case Studies

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For a prosecuting attorney, proving constructive possession can be more difficult than it may

sound. To illustrate the difficulty, consider the follow four scenarios wherein you are charged

with possession of a controlled substance. Keep the definition of constructive possession in

mind.

1. You are driving in a vehicle owned by you and are pulled over by the police. There are

no passengers in the vehicle at the time. The police conduct a search and find a baggie

containing several pills that turn out to be oxycodone for which you have no

prescription.

2. You are driving a vehicle you borrowed from a friend when the police pull you over. No

other people are in the vehicle at the time. A subsequent search of the vehicle uncovers

the baggie of pillsin the center console – within easy reach--that turn out to be

oxycodone for which you have no prescription. You just took possession of vehicle 30

minutes prior to the arrest and claim you knew nothing about the pills.

3. You are driving your vehicle with three passengers in the car at the time. The police pull

you over and conduct a search of the vehicle. A baggie of oxycodone pills is found

under the driver‟s seat but there was a passenger sitting directly behind you in the

vehicle.

4. You are a passenger in a vehicle owned by someone else. The police pull the vehicle

over and search the car. A baggie of oxycodone pills is found under the passenger seat.

You were sitting behind the passenger at the time of the stop.

In each of these scenarios the police can, and often do, charge anyone in the vehicle with

possession of the controlled substance found during the search. In fact, everyone in the

vehicle can be charged with possession of the same contraband. In which scenario does

possession seem the most clear? Are you guilty beyond a reasonable doubt in any of the

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scenarios? Scenario one seems the most likely to amount in a conviction. By the time you get

to the fourth scenario, it becomes difficult to argue that you “exercised dominion and control

over the contraband.” Scenarios such as these occur every day and many result in charges

being filed against the suspect. If you find yourself facing charges for a crime that is based on

a constructive possession argument, consult with an experienced Tennessee criminal defense

attorney right away to ensure that you are not convicted of a crime you did not commit and/or

that the State of Tennessee cannot prove beyond a reasonable doubt.

Cornell University Law School, Constructive Possession

Virginia Law Review, Constructive Possession in Narcotics Cases, To Have and Have Not

Court of Criminal Appeals of Tennessee, State v. Mershaun William Scott, (2012)

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About Bennett and Michael, Attorneys at Law

The law firm of Bennett & Michael is located on the historic public square in Murfreesboro, Tennessee. We

offer knowledgeable and effective representation for families in divorce and family law situations, injured

victims of negligent accidents, and those charged with misdemeanor or felony offenses.

Our firm takes pride in being a local law firm that delivers superior results at competitive prices right here at

home for the people of Murfreesboro, Smyrna, La Vergne, and the greater Rutherford County area. Our

staff is professional and helpful, and our attorneys are experienced litigators and trial lawyers.

When you need legal help, you should be confident that the lawyer you choose will provide you with

exceptional and trustworthy services. Our experienced, dedicated, and compassionate lawyers and legal

staff are committed to always protecting clients’ rights and relentlessly fighting for their best interests. Enlist

the unyielding advocacy at Bennett & Michael, and you can trust that you and your family will get the results,

service, and respect that you deserve. You won’t be disappointed.