Possession Definition


We get dozens of clients each year who walk into the law firm with the charge of possession of a controlled substance. The controlled substance is usually marijuana. I usually meet with the client and one of the first things I mention to them is what possession means under Iowa law. The meaning of possession and the charges associated with it may vary depending on each state.

Possession Definition

In Iowa, you can either have:

  1. Actual Possession
    • Actual possession is actually having the controlled substance on your person. For example, it could be in your shirt pocket.
  2. Constructive Possession
    • In most situations though, the person does not have it on their person. The drugs are usually located in the person's car, gym bag, or in their house. This will mean the State will be required you constructively possessed the drug(s). 

Constructive Possession

For constructive possession to be proven, the State must prove beyond a reasonable doubt that you 1) knew what it was, 2) where it was, and 3) exercised dominion and control over the drugs. Simply put, elements 1 and 2 are self explanatory. You have to know that the drugs are actually drugs and you actually have to know where the drugs are located (or have a pretty good idea where they are located). It's the 3rd element of "exercising dominion and control" where the State can have trouble proving the person guilty beyond a reasonable doubt. Set forth below is a little better explanation of  the meaning of exercising dominion and control.

Dominion and Control

State v. Kerns, 831 N.W.2d 149 (Iowa 2013) explains the dominion and control element very well in regard to what the State must prove to find a person guilty of constructively possessing a controlled substance. First off, it is very important to note that the jury is allowed to infer actions otherwise someone could simply say they did not have access to the drugs and would be found not guilty. Kerns states "that in the absence of actual possession, constructive possession requires the person to maintain control over the drugs or have the right to control the drugs, and this standard focuses on the ability to maintain control."  

In other words, the person must actually be able to use or have access to the drugs to use. If a person is simply in a car with someone who has drugs in the backseat, that person is not necessarily in constructive possession of the drugs unless they have the ability to control the drugs. But as previously mentioned, the jury is allowed to infer. For example, let's say a couple is traveling interstate 80 and is stopped for speeding. Upon the officer's confrontation with the stopped vehicle the driver rolls down his window and a odor of marijuana rolls out. Then the officer observes two joints in the ashtray. Neither person owns up to the marijuana and the officer charges both parties with possessing marijuana. In this situation a jury could infer that each party possessed the marijuana because there were two joints in the ashtray, it smelled like marijuana, and the joints were with in arms-length away from each person. It may be fair to conclude that each person possessed the marijuana in this case.

In contrast, let's say the couple was traveling I-80 and was stopped for speeding again. This time when the officer approaches the vehicle he does not smell weed when the driver rolls down his window but notices a joint on the dashboard. Then let's say the driver admits that the joint was his. In this situation, it may be fair to say that the right-front passenger did not possess the marijuana because she did not have access to the joint. In other words, it was the driver's joint and he was not sharing it. 

In conclusion, the possession of controlled substance law can be a very tricky area of law when it comes to whether a person constructively possessed the drug. It is always a good idea to speak with possession of controlled defense attorney and get their position on the matter. 

Contact a Drug Possession Lawyer in West Des Moines

The Feld Law Firm offers free consultations for anyone charged with possessing a controlled substance. A defense lawyer would be happy to discuss your situation with you and point you in the right direction. 

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