Constructive Possession Test
1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control.
2) The defendant was conscious of the object’s presence.
State v. Hankerson, 70 Ohio St.2d 87 (1982)
State v. Miller
Third District Appellate Court
Allen County, Ohio
June 8, 2026
Why is this case important?
State v. Miller is important because it provides a textbook example of constructive possession. The drugs were found in another person’s vehicle, yet the State built a Constructive Possession conviction. The totality of circumstances was based on Mr. Miller’s Meth Hat, his movements and his confession.
Background
On February 1, 2025, at approximately 12:45 a.m., Mr. Miller was a passenger in a vehicle that was stopped for a turn-signal violation. During the traffic stop, an open-air drug sniff of the vehicle was conducted and the canine alerted to the odor of narcotics. The vehicle was searched and a plastic bag containing methamphetamines was located on the passenger-seat floorboard inside a “beanie” hat that Mr. Miller had been wearing at the beginning of the traffic stop. Mr. Miller was later interviewed and he acknowledged that the drugs were his and that there was about an ounce of methamphetamines. Testing indicated that the plastic bag found in the vehicle contained 28.06 grams of methamphetamines, +/- .05 grams.
On March 13, 2025, Mr. Miller was indicted for Aggravated Possession of Drugs, specifically methamphetamines, in violation of O.R.C. §2925.11(A)/(C)(1)(c), a second degree felony because the amount equaled or exceeded five times the bulk amount but was less than fifty times the bulk amount. Mr. Miller pled not guilty to the charge.
AI rendition of Mr. Miller’s meth inside his hat.
Jury Trial – Guilty – Six to Nine Years in Prison
Mr. Miller proceeded to a jury trial on May 5-6, 2025, wherein he was found guilty of the offense as charged. Mr. Miller was then sentenced to serve an indefinite mandatory prison term of six years to a maximum of nine years. A final judgment entry memorializing Mr. Miller’s sentence was filed June 12, 2025. Mr. Miller now appeals the trial court’s judgment, asserting the following assignments of error for our review.
Mr. Miller was convicted of Aggravated Possession of Drugs, specifically methamphetamines, in violation of O.R.C. §2925.11(A)/(C)(1)(c), which reads as follows:
(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog. . . .
(C) Whoever violates division (A) of this section is guilty of one of the following:
(1) If the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule I or II, with the exception of marihuana, cocaine, L.S.D., heroin, any fentanyl-related compound, hashish, and any controlled substance analog, whoever violates division (A) of this section is guilty of aggravated possession of drugs. The penalty for the offense shall be determined as follows: . . .
(c) If the amount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount, aggravated possession of drugs is a felony of the second degree, and the court shall impose as a mandatory prison term a second degree felony mandatory prison term.
Possession – O.R.C. 2925.01(K)
Mr. Miller contends that the State did not present sufficient evidence that he possessed the methamphetamine. Revised Code §2925.01(K) defines “possession” as “having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.”
Established Case Law – Possession
It is well-settled that possession of drugs can be “actual” or “constructive. E.g. State v. Ritter, 2024-Ohio-1336, ¶ 12 (3d Dist.). Generally, a person has actual possession of an item if it is within his or her immediate physical possession/control. Id. citing State v. Williams, 2004-Ohio-1130, ¶ 23 (4th Dist.). Constructive possession exists if a person “‘is able to exercise dominion and control over an item, even if the individual does not have immediate physical possession of it.’” Id. quoting State v. Bustamante, 2013-Ohio-4975, ¶ 25 (3d Dist.). Importantly, constructive possession requires that “the person was conscious of the presence of the object.” State v. Hankerson, 70 Ohio St.2d 87, 91 (1982). {¶11} A defendant’s proximity to drugs alone is insufficient to establish constructive possession of the drugs; however, proximity may constitute some evidence of constructive possession. Ritter at ¶ 12, citing State v. Brown, 2009- Ohio-4390, ¶ 20. Thus, presence in the vicinity of the contraband, combined with another factor probative of dominion or control is sufficient to establish constructive possession. Id.
Evidence Presented by the State
On February 1, 2025, around 12:45 a.m., Officer #1 of the Lima Police Department observed a vehicle that did not activate its turn signal 100 feet prior to turning as required by statute. Officer #1 initiated a traffic stop of the vehicle for the infraction and he approached the driver’s-side of the vehicle.
Mr. Miller was Wearing a Black Beanie Hat
The vehicle was being driven by a man named Roger Hoskins. Mr. Miller was in the front passenger seat, wearing a black “beanie hat” and talking on a cell phone. Officer #1 noticed that the driver was shaking and appeared to be extremely nervous. Officer #1 asked for the IDs of both of the vehicle’s occupants, then went back to his patrol car to check their information. While in his patrol car, Officer #1 requested the assistance of a canine unit to conduct an open-air sniff of the vehicle.
Note: Officer #1’s name is used in the case but has been redacted in this article.
Canine Alert
Canine Officer of the Lima Police Department responded to the scene within minutes. Another officer from the Lima Police Department also responded to the scene to provide assistance. After speaking briefly with Officer #1, Canine Officer approached the stopped vehicle and informed Hoskins and Mr. Miller of the open-air sniff that was about to occur. Hoskins became argumentative and Mr. Miller expressed his concern that he had consumed marijuana, but Canine Officer indicated that the canine was not trained to detect marijuana. The open-air sniff was then conducted and the canine alerted to the odor of narcotics.
Note: Canine officer’s name is used in the case but has been redacted in this article.
Mr. Miller was no longer wearing his “beanie hat.”
After the canine alerted to the presence of narcotics, Officer #1 approached the vehicle and asked Hoskins, the driver, to exit the vehicle. The driver was searched by Officer #1. Notably, while the driver was being searched, the other officer that was present at the scene who had been standing by the passenger’s side of the vehicle came around to the driver’s side. Around that time, Officer #1 observed Mr. Miller dragging his foot as if he was pushing something back with it. On Officer #1’s body camera, it can be observed that Mr. Miller was no longer wearing his “beanie hat.” Officer #1 told Mr. Miller to stop reaching.
Search of the Vehicle
Once Officer #1 finished searching the driver, he had Mr. Miller step out of the vehicle. When Mr. Miller was getting out of the vehicle, the assisting officer observed that it looked like something had fallen from between his legs. Mr. Miller was searched and then the officers began their search of the vehicle.
Mr. Miller’s Meth Hat
Almost immediately the assisting officer located the “beanie hat” that Mr. Miller had been wearing at the beginning of the stop on the passenger floorboard of the vehicle. Inside the “beanie hat” was a plastic bag containing a substance that was later tested and found to contain 28.06 grams, +/- .05 grams, of methamphetamines.
Uber – Meth
On February 3, 2025, Mr. Miller was interviewed by a detective with the Lima Police Department. During the interview Mr. Miller stated that the “ice,” slang for methamphetamines, was his, and that there was about an “ounce.” Mr. Miller stated he was supposed to deliver the methamphetamines to a woman in Lima at an address that was approximately three to four blocks from the area of the traffic stop.
Appeal – Mr. Miller Disputes Possession of the Meth in his Hat
Mr. Miller does not dispute that methamphetamines were found in the vehicle on the passenger floorboard. However, he argues that the State did not sufficiently establish that he knowingly possessed the methamphetamines, particularly since the drugs were found in Hoskins’s vehicle and Hoskins was driving.
Mr. Miller told the detective that there was approximately an ounce of methamphetamines, and the amount of methamphetamines recovered was within .3 grams of an ounce.
Under a sufficiency of the evidence review, we are directed to look at the facts in the light most favorable to the prosecution. Here, methamphetamines were found during a traffic stop on the floorboard below where Mr. Miller was sitting, inside a hat Mr. Miller was wearing at the beginning of the traffic stop. Mr. Miller also admitted to a detective that the drugs were his. In fact, Mr. Miller told the detective that there was approximately an ounce of methamphetamines, and the amount of methamphetamines recovered was within .3 grams of an ounce.
Mr. Miller’s Possession Appeal is Overruled
The methamphetamines were thus located directly beneath Mr. Miller, in Mr. Miller’s hat, and Mr. Miller admitted the drugs were his in an interview. When analyzing these facts in the light most favorable to the State as we are directed, we do not find that there was insufficient evidence presented to convict Mr. Miller of Aggravated Possession of Drugs. Therefore, Mr. Miller’s third assignment of error is overruled.
Evidence Presented by Defense
Mr. Miller testified on his own behalf at trial. He acknowledged that he had an extensive criminal history with multiple drug-related convictions and that he had served time in prison. He also acknowledged that the methamphetamines were found in the vehicle.
Mr. Miller ‘Not My Meth’
However, Mr. Miller testified that he was unaware of the methamphetamines in the vehicle until one moment during the traffic stop where the driver, Hoskins, suddenly threw the plastic baggie of drugs in his lap. Mr. Miller indicated his story was corroborated by the fact that at one point the driver was admonished by an officer for taking his hands off of the steering wheel.
He testified that he knew he was tampering with evidence but he covered the drugs anyways.
Mr. Miller testified that he did not want to “snitch” on Hoskins initially. Mr. Miller testified that he never physically touched the plastic bag; rather, he testified he grabbed it with his hat then put the drugs inside. He testified that he knew he was tampering with evidence but he covered the drugs anyways. Mr. Miller also testified that he knew that the bag contained about an ounce of methamphetamines because he was very familiar with drugs and amounts and he could tell immediately.
Mr. Miller Testified a Woman He Never Met was Going to Take Him to the Hospital
As to his confession, Mr. Miller stated that he only claimed the drugs were his because he was going through addiction withdrawal and he was hoping to get drug treatment at the time. He also stated that he was only in Lima on the date in question because he was going to the hospital for a problem with his hand. He claimed that the woman he initially said he was delivering drugs to during his police interview was actually going to take him to the hospital, not receive drugs, even though Mr. Miller had never met the woman in-person. Mr. Miller did not know if the woman was white or black as he had just met her online.
Mr. Miller told multiple stories regarding the drugs.
Mr. Miller argues that the evidence established that he lacked the knowledge of the drugs being in the vehicle until the moment they fell into his lap. However, Mr. Miller told multiple stories regarding the drugs, and it is well-settled that a conviction is not against the weight of the evidence because the jury elected to believe the State’s version of events. State v. Green, 2023-Oho-4360, ¶ 136 (3d Dist.).
Application of Facts
Moreover, in Mr. Miller’s earlier statement in his interview he was clear in that the drugs were his, there was about an ounce, which was accurate, and that he was delivering the drugs to a woman. The drugs were found underneath Mr. Miller, inside the very hat that Mr. Miller had been wearing at the beginning of the traffic stop. Mr. Miller was actually observed making movements in the passenger seat, and an officer thought she observed something fall when Mr. Miller got out of the car. We have previously held that “furtive moments” in an automobile may provide sufficient indicia of dominion or control over contraband, permitting an inference of constructive possession. State v. McClain, 2020-Ohio-1436, ¶ 46 (3d Dist.).
Conclusion and Holding
Given all the evidence in the record, we do not find that this is one of the exceptional cases where the evidence weighs heavily against the conviction. Therefore, Mr. Miller’s second assignment of error is overruled.
Note: There was another appeal to oppose the admissibility of his jail phone call on a recorded line. That appeal was also denied but is not evaluated in this article.
Information for this article was obtained from State v. Miller, 2026 – Ohio – 2141.
State v. Miller, 2026 – Ohio – 2141 was issued by the Third District Appellate Court on June 8, 2026 and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.
Lessons Learned
Constructive Possession – The Constructive Possession doctrine was established by the Supreme Court of Ohio in 1982. That court carved out a two-part Constructive Possession test; 1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control; 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982). The most challenging element is to prove that the person was conscious of the object. In this case Mr. Miller secreted the methamphetamine in his hat. Mr. Miller clearly had dominion and control of the methamphetamine AND was conscious of the object, since the meth was inside of his hat.
Furtive Movements – In this case the court stated “We have previously held that “furtive moments” in an automobile may provide sufficient indicia of dominion or control over contraband, permitting an inference of constructive possession. State v. McClain, 2020-Ohio-1436, ¶ 46 (3d Dist.).” Though ‘furtive’ is common in law enforcement, officers should never use the word furtive. Furtive simply means secretive movement and does not explain what the person actually did. Instead, describe the precise movement you observed—for example: “The male touched his waistband near a bulge.”. “The driver reached between the seat and the center console” “The driver leaned behind the passenger seat” or “The driver opened the glove box.” Specific, concrete descriptions help prosecutors, judges, and defense counsel assess the facts and ultimately support law enforcement decisions. Weeks, months or even years later, furtive movement is vague and unhelpful; detailed observations preserve clarity. Be specific, not ambiguous.
Canine Search – Though not addressed by the court, occupants of a vehicle should never be left inside during a canine sniff of a vehicle. In this case the court explained “After the canine alerted to the presence of narcotics, Officer #1 approached the vehicle and asked Hoskins, the driver, to exit the vehicle. The driver was searched by Officer #1.”. When occupants of a vehicle are left inside during a canine sniff it fails both officer safety and established case law. During a canine sniff the canine handler’s primary attention should be on the canine to observe a change in behavior or an alert. Therefore, the canine handler’s attention cannot be on the hands of the occupants. Consequently, this fails officer safety. There are many cases that have clearly stated a positive canine alert on the exterior of a vehicle does not justify the search of the occupants of the vehicle; such as State v. Dudsak, 2021 – Ohio – 3632 issued on October 12, 2021 by the Ninth District Appellate Court held “[A] canine alert alone does not establish probable cause sufficient to fully search or arrest the occupant of a vehicle.”. In similar canine alert cases quote the U.S. Supreme Court case from 1979 “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”. Ybarra v. Illinois, 444 U.S. 85 (1979). Propinquity means closeness or nearness. The Miller case was evaluated under the Constructive Possession doctrine because of the methamphetamine in Mr. Miller’s hat not the search of his person based on the positive canine alert.
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