Suppose you and a couple of your friends were stopped by the police for a minor traffic violation, and suppose further that there were a couple of "roaches" in the the center console ash tray. Could the police arrest you as a backseat passenger, even though you were not close to the marijuana? And might the charge be successfully prosecuted?
The answer is "yes" to the first question and "maybe" to the second. It is not uncommon for a prosecutor to dismiss drug charges against occupants of a motor vehicle when two circumstances arise: somebody in the vehicle says "the weed (or whatever) is mine" and the controlled dangerous substance (CDS) was found in a common area, like the floor or ash tray.
But sometimes everyone denies knowing anything, and so the state relies on a concept called "constructive possession". According to N.J.S.A. 2C:35-10(a), the drug possession statute, "[i]t is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance . . . ."
Think of these two examples to distinguish "actual" verses "constructive" possession. Someone actually possesses the belt around their waste or the ring on their finger. Somewhat differently, each of the people sitting at a restaurant table constructively possesses the salt and pepper shakers, even though none might be actually using or touching the shakers.
Here is the legal definition taken from a criminal jury charge for constructive possession:
Constructive possession means possession in which the person does not physically have the property, but though not physically on one's person, he is aware of the presence of the property and is able to exercise intentional control or dominion over it.
A person who, although not in actual possession, has knowledge of its character, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.
So, you need not actually have the drug in your hand or your pocket in order to be charged and found guilty of possession of illegal drugs.
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