Utah Drug Constuctive Possession Attorney

Drug Possession Lawyer in Salt Lake City

Understanding Utah’s "constructive possession" drug laws can be a challenge. That’s because most people think that unless they are found with the "stuff" on them, they cannot be found guilty for possession in Utah. In Utah, such is not the case. Please call our law firm, so that we can defend your rights at 801-364-6454.

Probably the best way to think of it is like this: if you rent an apartment in Utah, you have the right to possess it, not the landlord, even though he or she owns the property. The same goes when you buy a car, and are making payments to a bank. The bank is the legal owner until the note is paid off, and you are the "equitable" owner that possesses it.

So, if the police find marijuana in your apartment or car, neither the landlord nor the bank would be charged with the crime, rather, the tenant or driver of the car would be. After all, it would be unfair to charge the landlord or banker because they are not the ones "dominating" and "controlling" the property.

Now what if the tenant or driver was in Hawaii on a vacation at the time? Or what if the drugs were found hidden in a bathroom, or under the hood of the car, and the tenant says, "Hey, I had no idea that was even there!" Is this enough? Does the Prosecutor have an easy case? The answer is not necessarily. Please call our law firm, so that we can defend your rights at 801-364-6454.

Here is a leading case on this (in Utah we call this the "Fox" case)¹:

Background: Gary and Clive Fox were convicted of possession with intent to distribute and production of a controlled substance. They appealed, claiming that the State simply did not have enough evidence to convict them, even though it looked like at least one of them must have had a pretty good idea the drugs were there. You see, marijuana plants were found inside Gary’s property. And marijuana paraphernalia was found in his bedroom. Most the housing bills were paid by Gary, but some by Clive, and neighbors claimed that both of them lived there, but did not see them there a lot. The question was whether that was enough. The Supreme Court of Utah said "no". It had to be proven that they both knew of the drugs. The Court went so far as to say this:

"Although defendant most certainly knew of the existence of the items and their potential for illegal use, [k]nowledge and ability to possess do not equal possession where there is no evidence of intent to make use of that knowledge and ability. Thus, the evidence "must raise a reasonable inference that . . . defendant was engaged in a criminal enterprise and not simply a bystander."

For example, let’s assume a 12 year-old is at a 4th of July party with his parents, and there are unattended packs of cigarettes and glasses of half-drinken beer all around him. That would not be enough to show that he was in possession of the cigarettes and the alcohol. Yes, he was near them. Yes, he knew they were there. But he had no control or dominion over them, and was just a bystander. Please call our law firm, so that we can defend your rights at 801-364-6454.

Here is another story:

Spanish Fork police received a tip that Debbie had been using drugs in her home. Acting on this information, they searched Debbie’s garbage. Police did not need a warrant for this search, because the U.S. Supreme Court has held that the warrant requirement against illegal searches only applies where there is an "expectation of privacy" that society finds "reasonable".² It is the Supreme Court’s position that citizens do NOT have a reasonable expectation of privacy over trash left outside the curtilage (or immediate surrounding area) of their home.³ Officers often use this exception to the warrant requirement to their advantage, especially when they might be "fishing" and do not have much to go on.

In Debbie’s case, officer’s field tested residue they found in her trash and determined it contained traces of methamphetamine, cocaine, and marijuana. Using this test, they were able to obtain a search warrant for Debbie’s home. They carried out the search while she was away and discovered hypodermic needles, hemostats, and even a picture of her husband smoking a bong. The officers did not, however, find any illegal substances or residue along with the items.

Because Debbie was not home and did not have actual physical possession of the items, officers used the legal concept of "constructive possession" in order to charge her with possession of drug paraphernalia in violation of Utah Code § 58-37a-5.

The statute reads:

It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body in violation of this chapter. Any person who violates this subsection is guilty of a class B misdemeanor.

In Utah, a class B misdemeanor is punishable by up to 6 months in jail and a fine of up to $1000.

In order to prove constructive possession in Utah, there must be a link, or a "nexus", between the accused and the drug or item sufficient enough to allow an inference that the accused had both the ability and the intent to exercise dominion and control over the drug.⁴

Please call our law firm, so that we can defend your rights at 801-364-6454.

Debbie was convicted in trial court, but appealed her conviction to the Utah Court of Appeals. The Appeals Court agreed with Debbie, and reiterated several factors that must be considered when determining whether constructive possession of a controlled substance exists, including the following:

• 1) defendant’s presence at the time the drugs were found, with emphasis on the fact that the drugs were in plain or open view; 2) the defendant’s access to the drugs; 3) the proximity of defendant to the drugs; 4) evidence indicating that the defendant was participating with others in the mutual use and enjoyment of the contraband’; and 5) incriminating statements.⁵

After applying the facts of Debbie’s case, the Court determined the state had not met their burden of proof, saying:

Although circumstantial evidence may be enough to prove constructive possession, the State has the burden of establishing beyond a reasonable doubt that defendant committed each element of the crime charged.⁶ In cases relying on constructive possession, that burden requires a presentation of extensive and detailed facts.⁷

Please call our law firm, so that we can defend your rights at 801-364-6454.

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¹State v. Fox, 709 P.2d 316, 319 (Utah Ct. App. 1985).

²California v. Greenwood, 486 U.S. 35 (1988).

³Id.

⁴Spanish Fork v. Bryan, 1999 UT App 61, 975 P.2d 501 (Utah Ct. App. 1999).

⁵Id.

⁶Spanish Fork v. Bryan, 1999 UT App 61,¶2, 975 P.2d 501 (Utah Ct. App. 1999) (quoting Workman, 852 P.2d at 985))

⁷Spanish Fork v. Bryan, 1999 UT App 61,¶2, 975 P.2d 501 (Utah Ct. App. 1999).