My Love Of The Law

Constructive Possession Of Drugs: You Can Be Convicted Even If The Drugs Weren't Actually On You

by Alan Medina

Myth: You can't be convicted for possession of drugs if they weren't on your body, or in the vehicle when you were arrested. After all, a dozen other people could have placed those drugs there, so there's no way to prove that you had anything to do with them, right?

  • Reality: The prosecutor doesn't have to show that you had actual possession of the drugs. You can still be convicted for constructive possession of the drugs, whether they were your drugs or not.

This is what you should know about drug possession and the law:

Actual possession of drugs occurs when the police find the drugs in your hands, pockets, or where you're the only person who has equal access to the drugs. For example, the drugs are found in your car, and you are the only person who has a set of keys. Or, the drugs are found in a safe that you keep in your basement, and you're the only person with the combination.

Constructive possession of drugs can occur whenever:

  • you knew about (or it can be inferred that you knew about) the drugs,
  • you could exert dominion and control over the drugs (whether or not you did), and
  • you knew that the drugs were illegal.

​You can be charged with constructive possession if the drugs are in close proximity to you, even if the drugs belong to someone else. For example, if you're in a friend's car and there's a bag of marijuana under the passenger seat, you and your friend could be charged with joint constructive possession.

In fact, if the drugs are under your seat, your friend may have a better chance of avoiding a drug conviction than you do, by asserting that the drugs were yours, as evidenced by their much closer proximity to you!

What Sort Of Facts Are Used To Convict You Of Constructive Possession?

Some cases of constructive possession are easier to prove than others. For example, if the police witness you tossing a bag of marijuana out of a car window while they're trying to pull you over, it's fairly easy to prove construction possession of the drugs.

However, if a bag of cocaine is found in the kitchen of the house that you rent along with several other college students, it could be a lot harder to prove your constructive possession (although you might still be arrested). Even though you had access to the drugs, and could have exerted dominion and control over them, the prosecutor would have to show that you knew the drugs were there and that it was actually cocaine (as opposed to flour). 

Some facts that are used to prove constructive possession of drugs include:

  • suspicious or evasive behavior right before being stopped by the police, or during questioning
  • occupancy of a vehicle when it's stopped and the drugs are found
  • finding the drugs in someone's private bedroom in a shared house
  • finding drug paraphernalia on someone's person and the drugs nearby
  • finding drugs in someone's bookbag, purse, jacket, or other possessions, even if those possessions were able to be accessed by others

If you've been charged with possession of drugs, don't try to handle your case yourself. Too many people make the huge mistake of thinking that the government won't have a case just because the drugs weren't found directly on them. Talk to a criminal defense attorney today, so that he or she can explore the circumstances of your arrest and the evidence against you, before you decide how to proceed.