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What should you know about constructive possession?

If you face drug charges of any kind, you would do well to familiarize yourself with the constructive possession doctrine. It could mean the difference between conviction and dismissal of the charges.

It goes without saying that the prosecutor cannot convict you of a drug charge unless he or she proves to the jury that you possessed or controlled the drugs in question. FindLaw explains that he or she can do this in one of two ways: actual possession or constructive possession.

Actual possession

Proof of actual possession generally comes by way of a law enforcement officer’s testimony that he or she found the illegal drugs either on or very near your person. Common places include one of your pockets or your backpack or purse.

Constructive possession

Conversely, constructive possession relies on the circumstantial evidence surrounding where and under what circumstances the officer recovered the illegal drugs somewhere other than on your person. To convict you, this evidence must be strong enough for the jury to reasonably infer that you possessed or controlled them.


Say, for instance, a law enforcement officer testifies as follows:

  • He or she pulled you over for a suspected traffic offense.
  • Two passengers rode in the car with you.
  • As part of a legal search of your car, the officer discovered a baggie under the driver’s seat that contained illegal drugs.

The question obviously becomes: whose drugs were they? Given that your passengers had the same opportunity as you to hide the baggie under your seat, the jury has no way of determining who actually owned the drugs in it. Your attorney likely can convince the prosecutor to drop all charges against you since no one can prove that you owned, possessed or controlled the drugs.


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