Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to quash Possession with the Intent to Deliver charges in Philadelphia. Relying on the defense of constructive possession, Attorney Goldstein successfully convinced the Court of Common Pleas judge to dismiss all charges because the Commonwealth failed to adequately show at the preliminary hearing that the defendant actually or constructively possessed the controlled substance in question. 

In Commonwealth v. QG, Philadelphia prosecutors charged the defendant with possession with the intent to deliver (“PWID”) and related charges. A Pennsylvania State Police Trooper had pulled QG over on the highway for a minor motor vehicle code violation. QG pulled over on command, and the trooper approached the car. Once the trooper reached the driver’s side window, he could smell the odor of marijuana coming from the vehicle. He therefore removed QG and the front seat passenger from the vehicle and began searching the car. He found nothing on QG or the passenger, but he did find a small amount of marijuana in the center console. He also found a pouch on the back seat of the vehicle behind the passenger’s seat, and inside that pouch, the trooper found a significant quantity of heroin/fentanyl and paraphernalia which suggested that the drugs were likely for sale. Neither occupant of the car made any incriminating statements, neither person appeared nervous or attempted to flee, the car did not belong to QG, and the Commonwealth did not perform any forensic testing on the pouch or its contents to determine whether QG’s fingerprints or DNA were on any of the items. 

The Commonwealth proceeded on a theory of constructive possession, meaning that they argued that even though the pouch was not physically on QG, it must have been his because he was the driver of the car. The Philadelphia Municipal Court judge agreed and held the case for court, so Attorney Goldstein filed a motion to quash when the case reached the Court of Common Pleas. In the motion to quash, Attorney Goldstein argued that the Commonwealth had failed to prove constructive possession – meaning essentially that the DA’s office had failed to prove that the drugs belonged to QG and that they could have belonged to the passenger or someone else who had recently been in the vehicle. 

In general, constructive possession is a legal doctrine that allows the Commonwealth to obtain a conviction for a possessory offense even when the contraband is not found on the defendant. In order to prove constructive possession, the Commonwealth must prove that a defendant had the intent and ability to control the contraband in question; in other words, the Commonwealth must be able to circumstantially prove that the contraband belonged to the defendant. Typically, the Commonwealth will seek to show that a defendant constructively possessed something by showing nervousness, furtive movements, flight, statements, or by using forensic testing to obtain DNA or fingerprints. Here, the Court of Common Pleas granted Attorney Goldstein’s motion to quash because the Commonwealth could not prove any of those things. Accordingly, the Court dismissed all of the charges, and QG was immediately released. 

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