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Constructive vs. Actual Possession Handgun in Glovebox Indiana

Possession, Borrowed Vehicles and Weapons | Free Legal Fridays

 I borrowed my brother’s vehicle and he left his handgun in the glovebox.  I was pulled over and when I went to get the registration, the officer noticed the gun in the glovebox.  I told him that I did not know the gun was there, but I was arrested and charged with possession of handgun without a license.  What can I do?

This question uses the same legal concept, constructive possession, that I discussed in the last Free Legal Fridays.  In Indiana, possession can be proven two ways: 1) actual possession and 2) constructive possession.

Actual possession is exactly that, the person has direct physical control of the item.  For example, a police officer performs a pat down search of your person and finds a gun in your coat pocket. If you do not have a license to carry, you will be charged with possession of handgun without a license and prosecuted under actual possession.  On the other hand, constructive possession allows the prosecutor to cast the net a little farther.

A person is in constructive possession of an item if

1) he has the intent to maintain dominion and control over the item and

2) has the ability to maintain dominion and control over the item.

The proof of a possessory interest in the premises of where the item is found is sufficient to satisfy the second prong of constructive possession, regardless of whether the control of the premise is exclusive.  However, when the possession of the premise on where the item is found is not exclusive, then the inference of intent to maintain dominion and control over the item must be supported by additional evidence of the person’s knowledge of the incriminating nature of the item and their presence.

The Courts have established several factors to consider in determining the intent prong:

1) incriminating statements made by the person,

2) attempted flight or furtive gestures,

3) location of substances like drugs in settings that suggest manufacturing,

4) proximity of the contraband to the defendant,

5) location of the contraband within the defendant’s plain view, and

6) the mingling of the contraband with other items owned by the defendant.

Furthermore, both actual and constructive possession can be sole or joint.  If one person has actual or constructive possession of an item, then possession is sole.  If two or more persons share actual or constructive possession of an item, then possession is joint.

In this case, the gun was found in the glovebox of the vehicle.  Therefore, the State’s theory of prosecution would be constructive possession.  He was the driver of the vehicle and; therefore, had possessory interest in the house.  However, unlike the case discussed in the last Free Legal Fridays where the marijuana was found in the living room, the gun was not located in plain view.  The State would have to prove that he had knowledge the gun was in the glovebox to satisfy the intent prong of constructive possession.  This would be difficult to do.

If you or a family member have been arrested and charged with a crime or is the subject of a criminal investigation, call the experienced trial lawyers at King, Brown & Murdaugh, LLC for a free initial consultation.

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Russell W. Brown Trial Attorney Northwest Indiana

Russell Brown Jr. primarily focuses his practice on criminal defense and post-conviction relief. He has helped many clients take advantage of the new expungement laws, providing them a clean slate. Mr. Brown also has experience navigating through the complex laws and administrative regulations of the Bureau of Motor Vehicles, assisting clients with obtaining a valid driver’s license.

Mr. Brown’s experience also includes criminal appeals. He has successfully written briefs and participated in oral arguments, obtaining relief for clients. In addition to criminal defense, Mr. Brown also has experience in education and personal injury. When not at the office, Mr. Brown enjoys coaching his son in sports and officiating varsity basketball games in the area.

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