Constructive Possession of Drugs in Pennsylvania: An Exercise in Legal Fiction or Practical Evidentiary Analysis?

• Published date: 01 July 1991
• Author: Charles P. Nemeth
• DOI: 10.1177/002204269102100302
• Date: 01 July 1991
• Subject Matter: Article

The

Journal of Drug Issues 21(3),

505-526,

1991

CONSTRUCTIVE

POSSESSION

OF

DRUGS

IN

PENNSYLVANIA:

AN EXERCISE

IN

LEGAL

FICTION

OR

PRACTICAL EVIDENTIARYANALYSIS?

Charles P. Nemeth

The

continuing

growth

of

illegal

drug

use and

possession

is a

growing

concern

in modem

America.

For law

enforcement

agents

andthe

judiciary,

control

islimitedbythis

growth,

aswell

as

statutory

andconstitutional

definitions

and

restrictions.

In

this

work,

the author

analyzes

the

"possessory"

definitions

commonly employed in controlled substances

legislation.

While

some

attention

is

given

to

actual

possession,

the

thrust

of

the

article

deals

with

the

definition

of

constructivepossession

since

itisin

constructive

possession

cases

thatmany

inferential

variables

emerge

and must be

considered

by the

court

when

makinga

ruling.

By

examining

the

historical

import

of

these

variables

atthe

Pennsylvania

appellate

level

overthepast

twenty

years,

a set

of

guidelines

can be

established

based on

these

historical

decisions

to

develop

a

standardization

of

evidentiary

factors

which

the

courts

can employto

effect

rulings

that

are

precise

and

insightful.

Introduction

The enforcement and control of controlled substances

and

narcotics in

modern America is a monumental task - difficult because of

both

the

amount of estimated use, as well as the statutory

and

constitutional restrictions

and

definitions imposed by law and the judiciary. Considering the relativistic

Charles P. Nemeth is a practicing attorney with offices in Pittsburgh and Philadelphia, Pennsyl-

vania. He is director of Public Service Administration at Waynesburg College, Waynesburg,

Pennsylvania and Hatteras, North Carolina. His specializations include criminal law,tax law, and

white collar and organized crime cases.

oJournal of Drug Issues, Inc. 0022-0426/91/03/505·526 $1.00

505

NEMETH

value systems

of

aculture

weaned

on a privacy rights orientation, an emphasis

on artificial stimulation and, some might say, a hedonistic philosophy of living,

the

task of outlining

the

proper

boundaries of

drug

misconduct is generally

not

the

result

of

consensus.

Certainly,

some

people

believe all

controlled

substances everywhereshould

be

legalized.' Conversely, many

people

wish

that

all drugs

and

controlled substances outside medically

accepted

practice would

be

declared

illegal?

For

the

latterproponent,elimination of

the

"drug"

problem

becomes a war on two fundamental fronts: first, catching users in

the

act,

and

second, arrestingpossessors of drugs -generally individualswho have physical

control of illegal substances with a variety of intentions from personal use to

delivery

and

distribution.

In

the

reality of policing, catching auser in the act is unlikely. Given this

fact, law enforcement's focus must

then

turn

to

the

possession issue, for it is in

the

"possessory"

arena

that

the justice system has its major success stories in

this war.

The

general subject of this

research

tells how possession is defined,

interpreted

and

analyzed.

More

specifically, this commentarywillfocus on

the

Pennsylvania appellate rulings dealing with charges of actual

and

constructive

possession

of

illegal drugs.

Part

of

this work's theme

or

hypothesis is

that

Pennsylvania law is now fairly

settled as a result

of

the

massive

drug

litigation

of

the last twenty years.

More

cogently, this examination of cases

and

scholarly inquiry should

lead

both

practitioners

and

academicians

alike to

some

clearer

picture

of

how a

possessory offense

can

be

successfully formulated in the Pennsylvania courts.

Logic dictates

that

appellate reasoning

and

debate

willgive greatest emphasis

to

the

problemof "constructive" possession

of

illegal drugs,since

proof

of actual

possessionis

proof

of

actualevents

and

reality, while constructive

proof

requires

the

Court

to examine a host of inferential variables.

Defining Possession

Conviction for possession of illegal controlled substances is only possible

after

proof

of a violation of the following statute in Pennsylvania:

Except as authorizedby this Act, the manufacture, delivery or

possession with intent to manufacture or deliver acontrolled

substance by a

person

not registered

under

this Act, or a

practitioner

not

registered or licensed by

the

appropriate

State

board, or knowingly creating, delivering or possessing

with intent to deliver acounterfeit controlled substance (is

illegal).3

Proof

of

possessoryoffense,while

not

lucidlydefinedor described, requires

the

Commonwealth

of

Penn~lvania

to show "actual, constructive, or joint

possession of

the

contraband.' While possession of illegal substances has long

506

JOURNAL

OF

DRUG ISSUES