The Company You Keep: 4 Things to Remember about Constructive Possession in Arkansas

Posted on Monday, March 29th, 2021 at 5:02 pm    

I’ve listened to numerous clients attempt to explain how the police can’t charge them with possession because they didn’t have anything illegal on them at the time of arrest. Maybe the person happened to be in a friend’s house when law enforcement showed up to conduct a parole search. Perhaps he was a passenger in a vehicle during a traffic stop where the officer smelled marijuana. If the officer conducts a search and finds illegal items, you could face possession charges along with your cohorts by merely being in the wrong place at the wrong time. Here are a few things you should know about constructive possession laws in Arkansas.

1. “But it wasn’t mine!”

What the hell is constructive possession anyway? Either you possess something or you don’t, right? Leave it to our criminal justice system to create this legal fiction to convict you for possession of items you don’t actually… possess. Under this theory, you can be convicted for having the ability or capacity to possess an illegal item AND the knowledge of the substance’s presence. It helps stack the deck for the state in cases where convicting on actual possession would be difficult.
Possession can be implied if an item is found in a place immediately and exclusively accessible to you. That could be at your feet in the passenger side of a car or on the kitchen table while you’re smashing a carton of Halo Top ice cream watching reruns of Real Housewives.

2. Joint Occupancy is not enough

Joint occupancy is just one of the factors the court may consider. There must be some additional factors presented by the state. When an officer conducts a traffic stop which produces some sort of contraband, the officer is going to ask who it belongs to. If none of your boys claim the item, the officer may charge every occupant in the car.

In that situation, remember that mere presence in the vehicle is not enough to convict on the theory of constructive possession. The state must show some additional factors to make their case at trial. That could include knowledge of the presence and nature of the illegal item, whether the item was in plain view, suspect’s control of the premises, proximity to the item, the amount of time suspect was present, behavior of the suspect, and other corroborating evidence found on the suspect’s person.

3. Riding solo

What if you’re driving by yourself in someone else’s car when police conduct a traffic stop and ask for permission to search? Maybe you’re crashed out on your buddy’s couch and the police raid the residence while you’re there alone. Sole occupancy is only one factor in proving constructive possession.
The mere presence alone is typically not enough to convict. The state needs to show some nexus between the accused and the item. That link must be sufficient enough to show the person knew about the item and its illegal nature. If you’re driving to the Electric Cowboy and your meth pipe is sitting in plain view on console, that’s likely sufficient. An item found in a rear passenger door may not be.

4. Plain View… or smell

If you’re in a vehicle stopped by police and the officer can see or smell contraband, that’ll likely be enough to get a conviction under constructive possession in Arkansas. If the officer can see it from outside the vehicle, claiming that you didn’t have knowledge of it’s presence is a tough argument to make. Your presence in the car along with knowledge of the contraband can land you and everyone in the vehicle with possession charges. That’s true even if there is only one illegal item through joint constructive possession.

The Law Office of David L. Powell can help if you or a loved one has been charged with possession of drugs or paraphernalia in the state of Arkansas. Call 479-222-6773 to schedule a free consultation. (Also licensed in Oklahoma)

This bog is for educational purposes as well as to give you general information and a general understanding of the law, not to provide specific legal advice. In reading this blog you understand that there is no attorney-client relationship between you and the author. Use this information at your own risk as this blog may not reflect the most current legal developments. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.