Constructive Possession of a Controlled Substance

Constructive possession

Refers to drugs found in an area near your person. For example, this could include suspected paraphernalia found in the car you occupied. Constructive possession is much more difficult to prove that actual possession.

Actual possession

Refers to the drugs that law enforcement found on your actual person. This could include carrying an object in your pants pocket, your purse, etc.

What is Constructive Possession of a Controlled Substance?

Constructive possession exists where a defendant does not have actual physical possession of contraband but knows of its presence on or about his premises and has the ability to exercise and maintain control over the contraband. To show constructive possession, the State must demonstrate that the defendant exercised dominion and control over the contraband, had knowledge of the presence of the contraband, and had knowledge of the illicit nature of the substance.

If the premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.

Constructive possession of a controlled substance exists where you do not have actual physical possession of an illegal drug, but you do have:

  1. knowledge of the drug’s presence on or about your property and
  2. the ability to maintain dominion and control over it.

Constructive possession can be sole or joint, meaning either an individual or a group of two or more people can be charged with constructively possessing the object. But merely being in close proximity to a drug is not enough to prove constructive possession.

What is Considered “Knowledge”?

Knowledge of the presence of contraband may be inferred if the accused is in the exclusive possession of the premises on which the contraband is found. If, however, the premises on which the contraband is found is in the possession of two or more jointly, knowledge of the presence of the contraband on the premises and the accused’s ability to maintain control over it will not be inferred, but must be established by proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises.

Are Drugs in My House or Car Enough to Prove Constructive Possession?

It depends. Remember, close proximity to a controlled substance is never enough to prove constructive possession.

Exclusive Occupancy

If you are the sole occupant of the home or car where a controlled substance is found, your exclusive occupancy is often enough to evidence your ability to exercise control over the substance and your knowledge of its presence.

Non-Exclusive Occupancy

If you are not the sole occupant of the home or car, possession is slightly more difficult to prove as close proximity alone is not enough to establish possession. Where there is more than one occupant, there must be additional evidence, such as incriminating facts or circumstances, that shows both knowledge and control.

What are Important Factors in Determining Constructive Possession?

These are a few examples of relevant factors in proving constructive possession:

  • The drugs are in plain view.
  • The drugs are with the person’s personal items, such as in a backpack
  • If in a car, they are found near the person’s immediate proximity
  • If in a home, they are found in the person’s bedroom
  • Nervous or suspicious behavior during arrest
  • Actual possession of related drug paraphernalia
  • Ownership of related drug paraphernalia
  • Ownership or control over the place where the substance is found

Constructive possession

Refers to drugs found in an area near your person. For example, this could include suspected paraphernalia found in the car you occupied. Constructive possession is much more difficult to prove that actual possession.

Actual possession

Refers to the drugs that law enforcement found on your actual person. This could include carrying an object in your pants pocket, your purse, etc.

What is Constructive Possession of a Controlled Substance?

Constructive possession exists where a defendant does not have actual physical possession of contraband but knows of its presence on or about his premises and has the ability to exercise and maintain control over the contraband. To show constructive possession, the State must demonstrate that the defendant exercised dominion and control over the contraband, had knowledge of the presence of the contraband, and had knowledge of the illicit nature of the substance.

If the premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.

Constructive possession of a controlled substance exists where you do not have actual physical possession of an illegal drug, but you do have:

  1. knowledge of the drug’s presence on or about your property and
  2. the ability to maintain dominion and control over it.

Constructive possession can be sole or joint, meaning either an individual or a group of two or more people can be charged with constructively possessing the object. But merely being in close proximity to a drug is not enough to prove constructive possession.

What is Considered “Knowledge”?

Knowledge of the presence of contraband may be inferred if the accused is in the exclusive possession of the premises on which the contraband is found. If, however, the premises on which the contraband is found is in the possession of two or more jointly, knowledge of the presence of the contraband on the premises and the accused’s ability to maintain control over it will not be inferred, but must be established by proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises.

Are Drugs in My House or Car Enough to Prove Constructive Possession?

It depends. Remember, close proximity to a controlled substance is never enough to prove constructive possession.

Exclusive Occupancy

If you are the sole occupant of the home or car where a controlled substance is found, your exclusive occupancy is often enough to evidence your ability to exercise control over the substance and your knowledge of its presence.

Non-Exclusive Occupancy

If you are not the sole occupant of the home or car, possession is slightly more difficult to prove as close proximity alone is not enough to establish possession. Where there is more than one occupant, there must be additional evidence, such as incriminating facts or circumstances, that shows both knowledge and control.

What are Important Factors in Determining Constructive Possession?

These are a few examples of relevant factors in proving constructive possession:

  • The drugs are in plain view.
  • The drugs are with the person’s personal items, such as in a backpack
  • If in a car, they are found near the person’s immediate proximity
  • If in a home, they are found in the person’s bedroom
  • Nervous or suspicious behavior during arrest
  • Actual possession of related drug paraphernalia
  • Ownership of related drug paraphernalia
  • Ownership or control over the place where the substance is found
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