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Constructive Possession: still falling out of favor in Iowa

By David Cmelik


I have blogged before that I believe the Iowa Court of Appeals is disfavoring the concept of “constructive possession” of marijuana in the State of Iowa. By constructive possession, the court refers to the legal construct of possessory attribution to a particular person based either on its proximity, or, “closeness,” to a number of potential possessors, or the circumstances surrounding its close presence to a number of people. For example, a pile of cocaine on a glass table at a party where three or four people are standing around might be considered constructively possessed by all of those standing around the table. More commonly, it happens that law enforcement seizes a baggie of a “green leafy substance” a seat cushion where three or four occupants of a car are personally present. If they cannot discern who it belongs to, or, in the alternative, guilt one or more persons to “own up” to its possession, they might arrest everyone in school yard fashion to punish everyone for the silence of the one owner—or they might actually believe that everyone “constructively” possessed the single baggie because it was apparent all knew of the marijuana or smoked it “jointly” (no pun intended). In the unpublished case of State v. Cross, 2013 Iowa App. LEXIS 155 (Iowa Ct. App. 2013), the Iowa Court of Appeals reiterated its adherence to the following principles: “The marijuana was found in the console of the vehicle Cross did not own, but was driving.  Here, as was the case in Kemp, "[b]ecause no drugs were found on the defendant's person, this matter concerns constructive possession." 688 N.W.2d at 789; see also Bash, 670 N.W.2d 135, 138 (Iowa 2003); State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003). Under these circumstances, knowledge of the presence of the substance may not be inferred. See Kemp, 688 N.W.2d at 789. The Kemp court noted that relevant factors to be considered for determining whether a defendant had constructive possession of contraband include: ‘(1) incriminating statements made by the defendant, (2) incriminating actions of the defendant upon the police's discovery of drugs among or near the defendant's personal belongings, (3) the defendant's fingerprints on the packages containing the drugs, and (4) any other circumstances linking the defendant to the drugs.’ Id.” The Court of Appeals appears to continue in the direction of disfavoring casual attribution of marijuana to someone merely because it is “close in proximity” and notes that knowledge of the presence of the substance must be found. In Cross the Court held reversed in part for dismissal because there was not sufficient evidence of this knowledge. Every case, of course, is different, and this knowledge can be specifically found by fingerprints or other indicia of, for lack of a better word, “ownership.” A blog is not legal advice. No attorney-client relationship is established by reading a blog or by sending unsolicited information to an attorney over the Internet. 


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