Understanding constructive possession

At Daughtry Woodard Lawrence & Starling in North Carolina, we defend numerous people facing drug charges. One of the ways we often can get the charges dismissed, usually long before the case goes to trial, is via the doctrine of constructive possession. We thought our blog readers might like to know about this little known legal doctrine.

In order to convict you of any kind of drug crime, the prosecutor must first prove that you possessed, owned, or at least controlled the drugs that law enforcement officers allegedly recovered from you. And (s)he must prove it beyond a reasonable doubt.

Actual versus constructive possession

As FindLaw explains, the law recognizes two types of drug possession: actual and constructive. In an actual possession case, all the prosecutor needs to convict you is the credible testimony of an officer that (s)he discovered the drugs on you, such as in one of your pockets. The prosecutor faces considerably more problems in proving a constructive posssession case however. Here the jury must reasonably infer that you possessed the drugs in question based only on circumstantial evidence.


First suppose the law enforcement officer credibly testifies to the following five facts surrounding the drug recovery:

  1. (S)he pulled your car over for a traffic stop.
  2. Based on the registration you produced, (s)he determined that you owned the car.
  3. You had three passengers in your car at the time.
  4. (S)he legally searched your car after you gave your permission for a search.
  5. (S)he found illegal drugs in your locked console after you voluntarily gave him or her the key.

Under these circumstances, the jury can reasonably infer that you possessed the drugs. After all, the officer found them in the locked console of your car, and you had the only key to it.

Now suppose that the officer testifies instead that (s)he found the illegal drugs in your unlocked console. Now the prosecutor has a big problem. Whose drugs were they? They may have been found in your car and in your console, but who put them there? All three of your passengers had just as much access to your unlocked console as you did, and all three of them had just as much opportunity as you did to place the drugs there.

Under these circumstances, the jury has no way to reasonably infer who owned the drugs, or therefore, who possessed them. Naturally one of your passengers could testify that (s)he owned the drugs, but common sense, not to mention the Fifth Amendment, dictates that none of your passengers will make such an admission. Consequently, the jury has no choice but to acquit you.

For additional information, please visit this page on our website. 


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