Constructive Possession, Drug Busts and the U.S. Mail

Today we went to trial and won without even putting on any witnesses for the defense. Out in Bridgeview (the 5th Municipal District) I watched the State’s Attorney have their case fall apart like tissue paper. It was a teaching moment, not their fault, but indicative of what you can face as a person caught up in the War on Drugs.

An informant had claimed to have bought drugs at the house of my client. The informant (confidential, of course) said that my client had offered her marijuana, left the room they were in (the living room) went into his bedroom and returned with weed. My client supposedly said that she could come back at any time.

My client was described as 5′ 08″ Hispanic male with dark hair. Really? Isn’t that about 75% of the Hispanic population in Chicago? Anyway, based on this flimsy info, the police obtain a search warrant and raid my client’s former home.

See, my client had moved out over a month prior to the alleged drug sale. My client had rent receipts and witnesses from Indiana where he was living. The police still came in, without any information that there would be guns or possible violence, shot all three of the family’s dogs (two of which were chained up and on less than four feet of leash) and tore the house apart. My client was not there, because he did not live there.

Now. In order to prove the intent of drug possession with intent to deliver, you must prove 1) knowledge of the presence of the cannabis, 2) it was in the person’s immediate control and 3) the quantity was in excess of an amount that might be viewed as for person use. I should note, my client barely made it over the limit for personal use possession.

However, it’s number two that is the kicker. The police must prove you had it in your immediate control, and what if when they find it, you’re not around? In our case, that was the issue, my client wasn’t home when they found a small amount of drugs in a bedroom. In order to prove that it was his, the State must prove “constructive possession.” Constructive possession is circumstantial proof that you, the criminal defendant, exert control over the area the drugs were found.

In order to do this, the police, during drug raids, take two things. Pictures and mail. Pictures are meant to show that you had pictures of yourself up and why would there be pictures there if it wasn’t your room (or house, or whatever). The other is the mail. When they find mail at the residence with your name on it, they grab it.

In our case today, the police grabbed…a four year old tax return, a bill with our client’s name on it…but it turned out to be for his father (who has the same name) and a pay stub, dated two days prior to the raid. Obvious defects were there with the tax return and the bills for our client’s father, but the pay stub was a problem. Clearly, there’s evidence there from our client from right before the raid…but of what?

Turns out, of nothing. For two reasons. Our client still visited home quite often. He was a young man and he did laundry at home, came home for meals, had four younger siblings still there. But more damning, the State didn’t have the police officer present from the raid who could testify from where any of the mail was found. What we knew was that they just grabbed a basket full of bills from the living room and took everything with our client’s name on it (which was also the name of his father). This pay stub was probably in there…but we’ll never know because no where in the police reports and no where in evidence did we have a clue as to where the mail came from.

In the end, the judge spent a good ten minutes from the stand lecturing the State on the weakness of their case. This was one of those “teaching moments” where I actually believe the judge was lecturing the police because of the really poor job they did. In fact, at one point, the judge noted that the police never asked our client the one question they should have. Which was, which bedroom was yours? Now the judge also noted that the police didn’t want my client to deny he lived there, or state the wrong room. So the police gambled. They gambled that they would be able to prove with the poorly documented and hastily gathered evidence, that there was constructive possession of the drugs they found. Which they could not, hence, my client was not guilty.

Of course, there is but one lesson to be learned from this whole escapade, which is the same one to be learned from all our teaching moments here. NEVER TALK! Ask for your lawyer, insist on not answering any more questions until you have been allowed to see your lawyer and just shut up. Proving constructive possession isn’t easy…don’t hand it to the State on a silver platter.


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