College Roommates and Constructive Possession – How a school housing situation could create a criminal problem for a college or graduate student

The college and graduate semester has started and thousands of students have moved on to campus or perhaps off campus with a new roommate. Most of these young men and women have never lived anywhere else but in their family home and have no experience living with a stranger.  No person moves into a college dorm, an apartment or a house with the thought that one or more of the persons living in that same residence could be involved in a criminal activity especially one involving illegal drugs, narcotics or even a gun or firearm.  A criminal issue, however, sometimes develops from this very situation.    

The types of criminal possession – Actual vs. Constructive Possession

It is important to understand that the laws in Pennsylvania, New Jersey, New York and around the country are similar with regards to illegal possession.  The law defines possession as actual or constructive.  Actual possession is when illegal substance, item or contraband is found on one’s person such as in their pocket.  Constructive possession is when the items is found in the area of the person’s immediate control.  Our law firm has previously represented individuals who have been charged with illegal possession of a gun or firearm that was found in a residence shared by two or more people, such as a college dorm room, or an off campus house or apartment. 

In a few rare cases, a person will take responsibility for the illegal item, but in many cases, a person will seek to blame another individual living there or refuse to make any statements incriminating themselves.  In New Jersey and Pennsylvania, multiple persons can be charged with constructive possession of the same illegal item if it is found in the area of immediate control.  In addition, a person faces a possible conspiracy charge in some cases, especially those involving illegal drugs and narcotics.  If you’re found in constructive possession of an item, you will face the same criminal penalties as a person found in actual possession of the item.

The Illegal Possession of Drugs and Firearms can be felony offenses in Pennsylvania and New Jersey

With regards to drugs, a substantial amount of an illegal substance like a drug or narcotic can lead to an additional charge of possession of intent to distribute (PWID) if there are certain circumstances surrounding the discovery, which would include the following:

• large amounts of money,
• digital scales and
• other means to sell and distribute the substances. 

Keep in mind that the illegal possession of a drug or narcotic is misdemeanor offense whereas possession with the intent to distribute is a felony offense.  With regards to firearms, while Pennsylvania does not maintain any mandatory minimum sentencing, New Jersey does maintain such sentencing under its Graves Act; most illegal firearms offenses are felony crimes in Pennsylvania and New Jersey

What are the possible defenses to a constructive possession argument? 

If you’re a roommate in a college dorm or some other shared residence, it is very important that if you suspect that your roommate is involved in some type of illegal activity, you attempt to get a new roommate or move out.  If this is not possible, do everything to separate yourself from the illegal activity, including keeping your personal belongings in a separate room and do not allow the roommate who is engaging in criminal activity to co-mingle his or her belongings with yours. Further, never leave your driver’s license or any other identifying item near or in the area where the illegal substance or firearm is located. 

The law will use several factors to determine constructive possession and there is no exact formula.  My best advice however is to do everything possible to separate yourself from that illegal item or activity.  Obviously, the perfect solution is just to move out but again, this isn’t always possible.  If you have questions regarding illegal possession of a drug or firearm, please contact our law firm.  Our law firm wishes you and you family a good summer and the best of luck in the upcoming school year. 

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