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What must the prosecution prove to convict the defendant of the possession charge?

The defendant was sitting in the passenger seat of another man's car. A police officer approached the car and asked the driver a question. The driver put a plastic bag that contained marijuana on the center console of the car, and the officer saw the bag. Both the driver and passenger were arrested and charged with possession.

see state v. Proctor, 901 So.2d 477 (La. App. 2005)

Expert Answers

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What the prosecution has to prove here is that the defendant had what is called "constructive possession" of the bag of marijuana.  Possession could also be established if the defendant had actual possession of the drugs, but this does not appear to be the case here.

In order to prove constructive possession, the prosecution must prove that the defendant exercised "dominion and control" over the drugs.  To prove that the defendant did in fact exercise dominion and control, the prosecution must show enough of the following types of evidence:

  • That the defendant knew of the presence of the illegal drugs.
  • That he had access to the area where the drugs were.
  • That he had used drugs recently.
  • That drug paraphernalia were present.
  • That the area where the arrest occurred was one that drug users often frequent.

There is no hard and fast rule for how many of these factors must be found or anything like that.  Instead, this is more of a situation where each jury or court must decide for itself if enough of the above factors have been proven.

You can see the whole opinion of the appellate court in this case at the following link.  I can't make it show up in the links place below, so you'll have to cut and paste if you want to use it.,48&as_vis=1

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