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cedar rapids / iowa city criminal defense

Dope on the floorboards: is constructive possession falling out of favor in Iowa?

By David Cmelik


They have a hunch there is contraband in the car and they use the traffic stop as a pretext to call in a canine unit. Perhaps they coincidentally are a canine unit. Officer Friendly walks the dog around the car and alleges that the dog alerts or “changes behavior” around the car. After removing the occupants, officers search the interior of the car.


After opening the center console in the vehicle, Officer Friendly spots what he describes in his narrative as a“green leafy substance” and some Zig Zag wrapping papers in the center console. Perhaps he finds ahollowed out Cigarillo commonly called a “blunt.” The officers separate theoccupants and begin questioning them for clues as to whom to attribute the marijuana. Think I pulled this case out of a specific incident narrative? Think again. This scenario is played out repeatedly across the State of Iowa by municipal, county, and highway patrol law enforcement every day. Next come arrests. The officers make judgment calls about who possessed the marijuana. It’s not science. To them, it’s an art, part physical evidence part interrogation. At some point, others may point the finger or simply acknowledge that all parties in the vehicle were smoking or had access to the marijuana. It’s possible for officers to arrest everyone, especially if it’s a head scratcher or if the officer is attempting to force a volunteer to step forward to “take one for the team.” This concept is called “constructive possession,” because such possession is a kind of mental construct. It’s hard for a lay person to wrap his or her head around how more than one person can “possess” something. Lawyers and jurists have constructed this type of possession in our minds to reflect that anyone person could partake from the illicit substance. It’s strange. Afterall, since we were very small children, we learned the word “mine” and jealously guarded our personal belongings. In a materialistic society, it’s difficult to fathom the communal possession of a substance like coffee or sugar. If we are spooning sugar into our coffee, it’s difficult to imagine how this sugar could be possessed by our companion at the breakfast table just because he or she knew about it, understood it was sugar, and knew that that it was sweet. Constructive possession is just such a weird thing. To be guilty of possession in Iowa, a defendant need have access to a controlled substance. Possession can be “actual or constructive.” Under Iowa law, possession is constructive where the defendant “has knowledge of the presence of the drugs ‘and has the authority or right to maintain control of [them].’” Since the 1973 Reeves decision in Iowa, constructive possession, not actual possession, is enough to impose a conviction. From 1973 until 1990, the prosecutor could imply to the jury, and the jury could infer, that a defendant constructively possessed a controlled substance if it was “immediately and exclusively accessible to the accused.” State v. Cashen, 666 N.W.2d 566, 569, 2003 Iowa Sup. LEXIS 142 (Iowa 2003). The Rudd case altered the requirements for constructive possession, requiring that a Defendant “maintain the control or a right to control the place where the controlled substance is found” or that such place be “subjected to her dominion and control, or the joint dominion and control of the defendant and other persons.” Id. The Cashen case tells us that police and prosecutors may not infer that mere proximity, or, closeness, to drugs is constructive possession.As late as last year, the Iowa Court of Appeals, in the Dolph case, reversed a jury conviction for constructive possession of drugs and paraphernalia inside a coat on the floorboards. The defendant in Dolph denied ownership of the coat. Citing to Cashen, the Dolph court noted that “we cannot infer that Jonathan was in exclusive possession of the coat or that he had knowledge of the coat’s contents and the ability to maintain control over them.” State v. Dolph, 821 N.W.2d 779, 2012 Iowa App. LEXIS 693, 4, 2012 WL 3590060 (Iowa Ct. App. 2012). Last year, the Court of Appeals issued an unpublished opinion in State v. Cross, in which they reversed for nearly identical reasons. Again, citing Cashen, they noted that:  “The marijuana was not discovered ‘among or near the defendant’s personal belongings’ and there was no evidence of incriminating actions on Cross’s part upon the police’s discovery of the marijuana. No fingerprints were found on the packaging. There were other people in the vehicle.” State v. Cross, 2013 Iowa App. LEXIS 155, 18-19 (Iowa Ct. App. Feb. 13, 2013)(citing Cashen). As Cashen, Dolph, and Cross point out, juries may not be invited to infer possession based on proximity. Each case is different and the advice of an attorney is crucial to the determination of whether officers erred in attributing possession of a controlled substance that is not seized from a single person. A blog is not a substitute for legal advice.