‘If it ain’t on me, it’s not mine’ …sounds good, but in actuality the law recognizes three types of possession, to establish that you had dominion and control of the evidence.

If you are being charged with ‘POSSESSION’ in New Jersey, whether it is of a gun, drugs or proceeds of a crime, the question is whether the police can establish whether you had an intent to access the item, not whether it was on your person or in your car.

If the item was in your hand or pocket, it is called ACTUAL possession. If the item was in a place that you control, such as your car console or trunk, it is CONSTRUCTIVE possession, and, if it is in a place where you and another person can each get it, it is JOINT CONSTRUCTIVE possession. In each type, the key is whether you can exercise ‘dominion and control’ over the item. The fact that you place the item in a location and leave it there does not vitiate your control over the item. The fact that you toss the item away into a bush or field, does not end your dominion over the item.

As a practical matter, if you were to ABANDON the item, it would have to be placed in a location where you could not later go back and regain the item, before the prosecution would be unable to show that you then controlled it. However, if you were to abandon it, you would be giving up (or at least weakening) the legal argument that it was then seized illegally, since you had given away your interest in it. From a defense point of view, I would rather have to argue whether the evidence that the police were saying you had, was illegally seized, than have to argue that something that was thrown away and abandoned was not the same thing you had been seen tossing away.

Circumstantial evidence, is often more persuasive than other types of evidence, especially if the prosecutor is able to argue ‘consciousness of guilt’ as part of the State theory to convict you. If the item is illegal to have, the State will argue that you threw it away because you didn’t want the illegal item on you when the cops caught up with you.  If the item is itself legal to have, the State will argue that it is exactly like the item taken from the victim, or used by the perpetrator, so you didn’t want the item on you when the cops stopped you. Either way, you do not have a strong basis to challenge the cops taking the item, that you abandoned. In a warrantless search, the burden is on the State to establish the legality of the search of you, your car, or your house which resulted in the seizure of the item, and that gives you and your lawyer a better opportunity to challenge the seizure of the item as evidence, than trying to convince a jury that ‘if it ain’t on me, it ain’t mine’.

#possession #evidence #notonme


The information contained in this blog post is intended as marketing, not advertising, as is more fully stated in the Disclaimer Page of this blog site. This post is strictly intended for general informational purposes only, and DOES NOT constitute legal advice on any legal matter in N.J. or in any other jurisdiction.

No attorney-client relationship is intended, offered or established by this information, even if it is similar in nature to a situation you are facing. Should you be confronted with a criminal prosecution or investigation, you are strongly advised to consult immediately with an experienced criminal defense lawyer licensed in the State or jurisdiction where the charges are filed, with whom you will have an attorney-client relationship, and can obtain legal advice on how to best handle your issues. This direct consultation should be done before you make any decisions in regards to your legal issue.

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