Connecticut Statutes define “Possess” as having physical possession or otherwise to exercise dominion or control over tangible property. Conn. Gen. Stat. § 53a-3(2). The crime of “illegal possession of a controlled substance” means certain things. It refers to an intentional control of the controlled substance accompanied by knowledge of its character. Conn. Gen. Stat. § 21a-279.
The crime of illegal possession of a controlled substance has three separate “elements”. The state must prove these elements beyond a reasonable doubt.
Illegal Possession of a Controlled Substance – Elements:
The defendant knew the character of the substance
the defendant knew of its presence,
(3) the defendant exercised dominion and control over it.
See: State v. Davis, 84 Conn. App. 505 at 511 (2004).
The first two elements concern the mental intent of the defendant to intentionally possess a controlled substance. The third element requires that the defendant express “dominion and control” over the substance: actual “possession”. However this does not mean that someone has to actually possess something in the ordinary sense of the word for the police to consider them guilty of violating § 21a-279.
The legal concept of “exercising dominion and control” over a controlled substance does not require actually having the substance on ones person or some act of control. Instead, it refers to the act of having a position of control coupled with the requisite mental state. In addition, depending on facts of a particular case a jury may infer, that a defendant knew of a drug’s character and presence from the fact that the defendant possessed the substance. State v. Davis, 84 Conn.App. 505 (2004); State v. Thompson, 46 Conn.App. 791 (1997).
Possession of a controlled substance may be actual, or it may be constructive. Although both actual and constructive possession require the elements of knowledge and control described in the previous section, the concept of constructive possession involves the situation in which the defendant, although not in actual possession of the substance, (e.g., it is not on his person or so close to him as to be functionally on his person) knowingly has the power and the intention of exercising dominion and control over the substance.
A major factor in determining whether an individual has constructive possession of contraband is whether or not they are in exclusive possession of the premises on which that contraband is found. No minimum amount of illegal substance must exist to constitute illegal possession, even a trace amount or residue will suffice. State v. Johnson, 26 Conn. App. 779 (1992).
Where the defendant has exclusive possession of the premises (e.g., house, car, storage space, bedroom) where the illegal substance exists, the police can infer from that possession that he knew of its presence and character, and that he had control of it. State v. Alfonso, 195 Conn. 624 (1985). One who owns or frequently uses an automobile in which an illegal substance gets concealed may be deemed to possess the substance. State v. Delossantos, 211 Conn. 258 (1989). Thus, where the defendant had exclusive possession of an automobile and had exclusive access to its locked glove compartment in which the substance got found, the jury could infer that he had control over the substance and knew of its character. State v. Lee, 32 Conn. App. 84, (1993).
In situations where the defendant does not have exclusive possession of the premises where the illegal substance gets found, it may not get inferred that he knew of its presence and character. Also, they might not have had control of the substance. That is, unless there are other incriminating statements or circumstances tending to support such an inference. State v. Alfonso, 195 Conn. 624 (1985).
Constructive possession issues often arise in cases involving houses or apartments with multiple inhabitants and cars with multiple passengers. The judge or jury will often need to consider all of the surrounding circumstantial evidence when deciding whether or not a defendant was in possession of the substance. Case law helps to inform judges of whether or not there is enough evidence to charge (or convict) someone with constructive possession as well as providing some examples to help explain the concept.
Where an illegal substance was found in a common area of the defendant’s room that he shared with roommates, it was not found among his personal belongings, and there was no evidence that he had used the substance in the past, there was insufficient evidence of constructive possession by the defendant. Id. Similarly, it cannot be reasonably inferred solely from the fact that the defendant was one of several occupants of a vehicle that he knew of the presence of contraband in the vehicle. State v. Delossantos, 211 Conn. 258 (1989). Where, however, there are such additional incriminating statements or circumstances indicating the defendant’s knowledge of the presence of the contraband and of its character, the fact that the defendant was not the sole occupant of the vehicle will not preclude a finding of constructive possession. State v. Pena, 16 Conn. App. 518 (1988).
Presence of Defendant and Drugs
Following these same principles, the mere presence of the defendant in the vicinity of an illegal substance is insufficient to support an inference of possession without some additional fact connecting him to the contraband. Thus, where the police found drugs under the siding of a house adjacent to a public street where heavy drug activity happened, the fact that the police saw the defendant in front of the house, bending over as if to tie his shoe when approached by the police, was insufficient to support an inference that he had constructive possession of the contraband under the house siding.
Although evidence existed that several cars had approached the defendant over a short period of time as he stood in front of the house, no evidence existed that the defendant had given anything to their occupants. Also, there existed no connection between the defendant and the drugs found under the house siding, or that the defendant had said anything incriminating. In re Benjamin C., 22 Conn. App. 458 (1990).
Section cited from: 10 CTPRAC § 21a-277