Constructive Possession in Washington Drug Cases

In Washington, a person may be convicted of possession of a controlled substance if he or she has actual or constructive possession of the substance.  A person has actual possession if he or she has physical custody of the substance.  A person has constructive possession if he or she has dominion or control over the item.  The dominion and control may be over the substance, or over the premises where it was located.  Washington drug crime attorneys may challenge whether the defendant was in possession of the drugs, or even whether the substance in question was a controlled substance.  In a recent case, the defendant challenged the evidence of possession and of the nature of the substance.

The police executed a warrant at a trailer.  A man and his girlfriend were in the front of the trailer.  The police officers found the defendant in a back bedroom with a female and took him into another room.  According to the officers, they asked him where his “bulk amount of dope” was, and he gestured with his head toward the room where they found him and said they “might want to check back there.”

The officers found three lines of suspected methamphetamine on a table, two safes, mail addressed to the defendant at another address, knives, a shotgun and a box with shells, two glass pipes, small baggies, and a backpack containing another knife.  They opened one safe with a key they found in a pair of pants.  Inside the safe, they found a baggie containing 17.62 grams of what they believed to be heroin.

They could not find a key to the other safe but opened it with tools.  Inside that safe, they found a large amount of cash and 18.5 grams of suspected methamphetamine.

The officers found a digital scale with heroin and methamphetamine residue outside the open window on top of a shrub.

The defendant was charged with possession of methamphetamine with intent to deliver while armed with a firearm, possession of heroin with intent to deliver while armed with a firearm, and first-degree unlawful possession of a firearm.

A forensic scientist from the state patrol crime lab testified that the scale tested positive for methamphetamine and heroin.  She also testified that the substance found in the safe the police had to break into tested positive for methamphetamine.

A police sergeant with training in identifying and field testing narcotics testified the substance in the safe opened with the key looked like heroin.  Another detective with training in identifying narcotics testified that it looked like heroin because of its dark tar appearance and that it had been wrapped in a baggie and tied off.  Another detective testified that he had performed a field test, and the substance tested positive for heroin.

The defendant testified he often spent the night at the trailer but did not have access to either of the safes.

The defendant was convicted of all three charges and appealed.  He argued there was insufficient evidence supporting his possession with intent to deliver convictions.

The appeals court noted that this case involves constructive possession.  The defendant does not need to have exclusive dominion and control to be found to have constructive possession, but there must be more than simple close proximity. The court noted that several of the defendant’s possessions were found in the room with the drugs.  Additionally, the officers testified that they asked where his “dope” was, and he indicated they should look in the bedroom.

The appeals court found there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that the defendant had dominion and control over the safe containing the methamphetamine.

The defendant also argued that there was insufficient evidence that the substance found in the safe the police opened with a key was heroin.  The appeals court noted that expert chemical analysis is not necessary for a conviction of a controlled substance.  The conviction can be supported by lay testimony and circumstantial evidence.  In this case, officers with experience and training in identifying narcotics testified that the substance appeared to be heroin.  An officer with experience and training also testified that a field test resulted in positive results for heroin.  Furthermore, the scale outside the window tested positive for heroin.  The appeals court found a rational trier of fact could find beyond a reasonable doubt that the substance was heroin, and there was sufficient evidence supporting the conviction.

The appeals court affirmed the convictions.

In this case, the appeals court found the evidence was sufficient to support the convictions. However, whether a defendant had dominion and control over an item will be dependent upon the facts and circumstances of the case.  If you are facing criminal charges, you need an experienced Washington drug possession attorney on your side.  Contact the attorneys at Blair & Kim, PLLC at (206) 622-6562 to discuss your case.

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