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What should you know about constructive possession?

On Behalf of | Feb 25, 2021 | Drug Crimes

In all likelihood, you have never before run across the term “constructive possession.” This legal doctrine, however, could make the crucial difference between acquittal and conviction when you find yourself facing drug charges.

Regardless of the specific charges against you, the prosecutor must first convince the jury beyond a reasonable doubt that you possessed, owned or controlled the drugs in question. He or she can do this in one of two ways: by proving your actual possession or by proving your constructive possession.

Actual possession

Proving actual possession requires only the credible testimony of a law enforcement officer that he or she recovered the drugs from somewhere on or very near your person, such as from one of your pockets, your billfold or purse, etc.

Constructive possession

As FindLaw explains, proving constructive possession, in contrast, requires the prosecutor to rely on circumstantial evidence that you possessed, owned or controlled the drugs. In other words, the evidence regarding the circumstances surrounding the officer’s recovery of the drugs must be so compelling that the jury can reasonably infer that the drugs belonged to you.

For instance, assume that the officer testifies that he or she found the drugs in a baggie underneath the driver’s seat of your car. Assume further, however, that you were not the only occupant of your car at the time. In fact, two of your friends were in the car, too. Under these circumstances, the prosecutor cannot prove your constructive drug possession. Why? Because each of the three of you had equal opportunity to hide the drugs where the officer found them. Neither the jury nor anyone else can therefore reasonably infer that you possessed, owned or controlled them.