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Constructive Possession of Contraband

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package of drug contraband

Constructive possession of contraband is different from simple possession. Contraband can be anything from drugs to firearms, and determining if someone possesses the contraband can be difficult. For instance, if the defendant is in a house that contains contraband, are they guilty of possession, even if the contraband isn’t theirs? It is difficult to determine when a defendant is complicit in the possession of the contraband, and many court cases in Maryland have examined this phenomenon, making rulings that further define the law of constructive possession.



Determining possession of the contraband is one of the most difficult parts of this charge to understand. Possession means that you knowingly own, carry, or use the contraband. This is simple possession. Possession can be direct or indirect. If the contraband is on the person, it is direct, but if the contraband is nearby, this could be considered indirect possession. This is where trouble arises.

Circumstantial evidence can indicate that the person has indirect possession of the contraband, but it is easy enough to say that the contraband in question isn’t theirs and that they didn’t know it was there. In police situations, the standard of evidence is that of probable cause, meaning the defendant probably is in possession of the material. However, even being in the same room as contraband is against the law. This is constructive possession because the defendant turns a blind eye to the law breaking in front of them. Again, the standard of evidence for the police in this case is probable cause, and that’s a very low standard.


Standards of Conviction

Direct and indirect possessions have their own standards of proof, but constructive possession has a more stringent set of requirements that must be met for conviction to occur. First, the constructive possession must be more likely than not. This means it has to just tip the scales into the probable area for the conviction to take place.

Second, there is a list of four criteria that should be met for constructive possession to be successfully prosecuted. Ownership of the premises or control of the vehicle is a large part of convicting for any type of possession, and it comes into consideration when determining constructive possession. The defendant’s proximity to the contraband is also looked at. If you are near the contraband, it is more likely that you are in indirect possession of it or constructively possessing it. Mutual use or distribution of the contraband can determine which type of possession. Lastly, exclusive use or access to the contraband is vital in determining possession. These are the four criteria that will determine the type of possession in court.


The problem of constructive possession

It is hard to prove that someone is in constructive possession of contraband because no one can prove who the materials belonged to. Although there are ways to determine possession that are more likely than not, these reasons can be shot down easily by an experienced Maryland defense lawyer. In fact, there are many cases that have been thrown out on appeal because the proof of constructive possession was flawed. As more defendants go through the system and the rules of possession are streamlined, it will be easier to determine what is indirect possession and what is constructive possession. In the meantime, more court cases and appeals will help to clarify the law and to potentially relieve a defendant of a conviction.