Chicago law enforcement is aggressively going after citizens with guns. In order to lawfully carry a firearm in Illinois any place besides one’s home or business, an individual must have both an FOID card as well as a concealed carry license.
If law enforcement finds a gun on someone’s person or nearby (e.g., in the glovebox of the car they are driving) and that individual does not have a concealed carry license, they may arrest the carrier for “Aggravated Unlawful Use of a Weapon” (the most common gun charge in the state) or other related crimes.
But what if the gun is not actually on the person who is arrested? What if, for example, the gun is in a roommate’s closet and the police find it during a search?
In situations like these, law enforcement can attempt to charge the defendant with what is known as “constructive possession.”
Definition of Constructive Possession
Constructive possession is a charge brought upon a defendant when law enforcement cannot charge with a standard possession charge (e.g., the defendant is a passenger in a vehicle containing a gun that does not belong to her).
To be found guilty of constructive possession of a firearm under current Illinois law, an individual must have knowledge of the presence of a firearm and ammunition, and must have the capability to use the firearm.
That means simply knowing the gun is in the home or area is not enough – the defendant must actually be able to access and use the gun in order to be guilty of constructive possession.
Normally, cases of constructive possession involve guns found in homes or cars. Constructive possession can also apply to other contraband, such as narcotics.
Examples of Constructive Possession
In the example above, the defendant could be found either guilty or not guilty depending on the circumstances.
For example, if the defendant knew that his roommate had a gun in her closet, but he was unable to access it because it was in a safe or his roommate kept her door locked, then it would be difficult for the state to prove that the defendant had constructive possession of the gun.
On the other hand, if the defendant knew that his roommate had a gun in her closet because he put it there and there were no locks or safes preventing him from accessing the gun, then the state might be able to convict the defendant of constructive possession.
In a 2011 case, People v. McIntyre, 2011 IL App (2d) 100889 (Dec 14, 2011), a defendant rode in a car with his friend to a man’s house.
The defendant thought his friend was going to fight the man at his home. When they arrived, instead of fighting, the defendant’s friend pulled out a gun and began firing.
The state arrested the defendant and charged him with constructive possession. The court, however, found the defendant not guilty because even though he was aware of the presence of a gun (since he saw his friend fire it), there was no evidence that the defendant had any control over the gun.
Other Factors of Constructive Possession
Constructive possession can be brought against two defendants, even if there is only one firearm.
For example, if a couple is taking a road trip and they pack their belongings, including a firearm, in the same suitcase and store the suitcase in the trunk, it may be assumed that both defendants had constructive possession of the firearm.
But, if the couple has two suitcases and the husband is unaware of a gun in the wife’s suitcase, then perhaps only the wife would be found guilty of possession.
Constructive Possession Can Be Fought
A defendant who is arrested and charged with constructive possession is not automatically guilty just because there was a gun in the defendant’s vicinity.
To find the defendant guilty, the state must prove the defendant knew the gun was present and the defendant was able to use the gun.
If the state cannot prove those elements, the defendant must be found not guilty. In addition, the state must have had a valid reason to search the defendant and her surrounding area.
For example, an officer must have probable cause to pull over a vehicle. Probable cause means the officer must have observed the driver breaking a traffic law, observed a problem with the vehicle (such as a broken taillight), etc.
If there was no probable cause, the officer had no right to pull over the vehicle and any charges resulting from the stop must be dismissed. This applies to invalid searches of homes, businesses, and other areas.
Call Abdallah Law Today
If you have been arrested for constructive possession of a firearm, contact the lawyers at Abdallah Law today. Our experienced legal team is ready to fight on your behalf.
Call Abdallah Law today at 312-229-0008 for a free consultation.