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What Is Constructive Possession?


It may come as a surprise to some people that it is possible to get charged and convicted for drug possession without ever having actual possession of the drugs in question. There are two ways in which a person can be convicted on a drug possession charge: one, if the prosecution can prove actual possession, and two, if the prosecution can prove constructive possession.

Actual possession is the easier of the two types of possession to prove. As the term suggests, a person who is arrested and charged with actual possession is typically found with the drugs in hand or on his person. Knowledge of the presence of the drugs is inferred from the fact that the person actually possessed the drugs at the time of arrest. A person may still be charged with actual possession if a police officer or another witness sees the person toss the drugs as he is pursued by police officers.

Constructive possession is a legal theory where a person’s possession of a controlled substance is determined based on evidence of the person’s dominion and control of the substance. For example, if the police conduct a traffic stop and subsequently conduct a search of the car and find a bag under the passenger seat with drugs in it, a passenger travelling in the car can be arrested for possession and prosecuted under a theory of constructive possession. However, simply because a person is near a controlled substance does not mean the state can convict the person of drug possession. The law requires more than mere proximity to the drugs for a person to be convicted.

Even when relying on constructive possession to prosecute someone on a drug possession charge, the prosecution is still required to prove the defendant’s knowledge that the drugs were where they were found, and knowledge of the illicit nature of the drugs. Take the example above, just because the police find a bag of drugs under the passenger’s seat does not mean the prosecution can prove the passenger knew the bag was full of drugs. With constructive possession, the prosecution would need independent corroboration that the passenger knew that the bag contained drugs.

In many cases, the issue of constructive possession arises in cases where multiple people share a house, and the police find drugs in a communal area of the house, such as the kitchen. In cases like these where the control of the home may be said to be joint, the prosecutor has to provide additional proof to show that the person on trial alone had control and dominion of the area where the drugs are found.

Contact an Experienced Criminal Defense Attorney

You should never make a statement to the police in an effort to explain your knowledge of the presence of drugs without speaking to an experienced attorney first. If you are a facing drug possession, manufacturing, or other drug charges in West Palm Beach, Florida, you need an experienced criminal defense attorney representing you. Contact Scott Berry Law for a free consultation today.


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