The most common narcotics offense
is "possession" of an illegal chemical
substance, as defined by California statutes. The
standard California jury instruction defines possession
as follows:
There are two kinds of possession: actual possession and
constructive possession.
"Actual possession" requires that a person
knowingly exercise direct physical control over a thing.
"Constructive possession" does not require
actual possession but does require that a person
knowingly exercise control over or the right to control a
thing, either directly or through another person or
persons.
[One person may have possession alone, or two or more
persons together may share actual or constructive
possession.]
In order to prove this crime, each of the following
elements must be proved:
1. A person exercised control over or the right to
control an amount of _________ , a controlled substance;
2. That person knew of its presence;
3. That person knew of its nature as a controlled
substance; and
4. The substance was in an amount sufficient to be used
as a controlled substance.
(CALJIC 12.00 [emphasis added])
If investigating officers find what they believe to be
evidence that an individual possesses narcotics with the
intent to sell them, the penalties are more severe. Large
quantities of narcotics, large amounts of cash, scales,
and notes of transactions are commonly considered
evidence of intent to sell. Some law enforcement
investigators are quick to assume intent to sell with
very little supporting evidence.
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