Understanding constructive possession

Here at the Parham Law Firm, LLC, in South Carolina, many of our clients face drug charges of one kind or another. All of these cases have one thing in common, however.

Whatever type of drug charges you face, the prosecutor cannot convict you of any alleged drug crime unless and until (s)he proves that you actually owned, possessed or controlled the particular drugs involved in your case.

Actual or constructive possession?

In a drug case, the fundamental question usually becomes: did you actually possess the drugs or did you constructively possess them? If a law enforcement testifies that (s)he recovered the drugs from somewhere on your person, such as from one of your pockets, the jury can conclude beyond a reasonable doubt that you possessed them.

Per FindLaw, however, constructive possession becomes considerably more difficult to prove. Here the prosecutor has to rely on circumstantial evidence to prove your drug possession. The circumstantial evidence must be strong enough to allow the jury to reasonably infer possession from the evidence presented.

Illustrative examples

To better understand the doctrine of constructive possession, take the following fact situation:

  1. The officer testifies that (s)he stopped your vehicle for an alleged traffic violation.
  2. (S)he determined from the registration you produced that you owned the car.
  3. (S)he observed that you had three passengers riding with you.
  4. (S)he conducted a legal search of your car.
  5. (S)he discovered illegal drugs in your car’s locked glove box after you gave him or her its key.

Based on this circumstantial evidence, the jury will have no problem reasonably inferring that you possessed the drugs. Why? Because you owned the car and you possessed the only key to its locked glove box.

Now let us change fact number five. Suppose the officer testifies that (s)he discovered illegal drugs in your car’s unlocked glove box. Now who owned and possessed them? Based on this circumstantial evidence, the jury cannot make any inference whatsoever, let alone a reasonable one. All four car occupants had equal access to your unlocked glove box, and all four had equal opportunity to place the drugs in it. The jury must acquit you.

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