Did you ever wonder how prosecutors are able to convict drug traffickers for possession of tons of illegal substances found on a cargo ship thousands of miles away? It’s because prosecutors can charge a defendant with the crime of constructive possession of drugs.
Prosecutors will bring constructive possession charges when a person is believed to own the narcotics, but they were not actually in their possession at the time of the seizure or arrest. That means you can be charged with a drug possession crime even if you don’t have any drugs on you.
If you suspect someone you associate with, live with, or share a vehicle with of possessing drugs, it’s possible that you could face a constructive possession charge for drugs found in a shared space.
Here is important information explaining the charge of constructive possession, possible defenses, and the consequences of a conviction.
What is the meaning of constructive possession?
Federal and state laws recognize two types of criminal possession: actual possession and constructive possession.
An actual possession charge occurs in drug arrests where illegal drugs, guns, or other contraband is found on a person at the time of seizure or arrest. For actual possession, the police typically find the contraband on a person’s body or in the hand, clothes, or something being held, like a bag, box, or case.
Constructive possession, on the other hand, is a special charge that prosecutors can use when the illegal items were not found physically on the defendant, but the defendant knew about the contraband and had dominion and control over it even though it wasn’t in their actual possession.
What are the elements of constructive possession?
Constructive possession of drugs is not as easy for a prosecutor to prove as an actual possession charge. They have to establish that the defendant knew of and had control over the illegal items that were located in a physically different place from the defendant.
The two main elements of constructive possession are knowledge and dominion and control.
Proof of Knowledge
Knowledge of illegal drugs is an essential element of constructive possession. There are two parts to the knowledge element.
First, prosecutors must show that the defendant knew about the drugs. Whether by direct or circumstantial evidence, the defendant must have known that the drugs were at, in, or around the location where they were found.
Prosecutors also must prove that the defendant knew or should have known that the drugs were in fact illegal. If the narcotics were kept in vials with fake pharmaceutical labels on them, and the defendant believed in good faith that the drugs were obtained by prescription, then prosecutors may not be able to establish this element beyond a reasonable doubt.
Proof of Dominion and Control
In addition to knowledge, prosecutors must show dominion and control over the drugs when ownership can’t be proven by actual possession.
The key to proving dominion and control is to establish the defendant’s ability and intent to control the drugs. Establishing the elements of constructive possession usually means prosecutors have to look at the surrounding circumstances for indirect evidence.
Indirect evidence can include the proximity of the drugs to the defendant. Another factor would be whether the defendant had exclusive occupancy of the place where the drugs were discovered. Prosecutors will also look for evidence that the defendant was using or distributing the drugs.
What is an exclusive occupancy inference?
On the other hand, the case of constructive possession is stronger against a driver who was alone in their own car at the time illegal drugs were discovered in the back seat.
The exclusive occupancy inference is that a person presumably has dominion and control over drugs found in their private and unshared home, car, storage unit, or other space.
So, if a person is the sole owner or only occupant of a house or car where a controlled substance is found, the doctrine of exclusive occupancy can be used to prove knowledge of its existence and the ability and intent to control it.
What is joint dominion and control?
Joint dominion and control is often alleged in cases where drugs are found on a shared property. Prosecutors can make a case against multiple people for joint dominion and control of illegal drugs if all of the defendants knew about the contraband and, more significantly, each defendant had the ability and intent to control it.
Assume that illegal drugs are found under a coffee table in the living room of an apartment shared by multiple roommates. The prosecutor could easily show that all roommates had access to the living room and, therefore, likely knew there were drugs under the coffee table.
The harder issue would be to prove who had dominion and control over the drugs because the living room is a shared area.
Is proximity to drugs enough to prove constructive possession?
Proximity can be an important factor in constructive possession cases. For example, if the drugs were found on the ground where the defendant was standing before he took off running, possession of the discarded drugs can be linked to the defendant through proximity.
But mere proximity to illegal drugs, by itself, is not enough to show that an individual had constructive possession. A passenger in a car where drugs were found in the back seat isn’t automatically deemed to have constructive possession of the drugs.
Defenses to Constructive Possession Drug Charges
Constructive possession is harder to prove than actual possession. Prosecutors often rely on witness statements and other indirect evidence.
The most common defense to a constructive possession charge is to argue that the prosecutor didn’t prove their evidentiary burden beyond a reasonable doubt.
To convict on a charge of constructive possession of contraband, prosecutors must prove the following elements beyond a reasonable doubt:
- The defendant knew of the presence and character of the contraband.
- The contraband was subject to the defendant’s dominion and control.
The element of knowledge is relatively straightforward. Proving dominion and control is often more challenging. If the prosecutor can’t show that the defendant had the ability and intent to control the drugs, then there can be no conviction.
For example, if a drug dealer stores narcotics in a locked safe in his bedroom, it would be hard for prosecutors to show that a roommate had dominion and control over the drugs.
Consequences for Constructive Possession of Drugs Conviction
The crime of possession of a controlled substance, whether actual or constructive, is classified typically as a felony. Drug possession is a serious criminal charge and the punishment typically includes jail time and money fines.
The penalties and fines for drug possession vary depending on the state. Sentencing will also depend on the type and amount of narcotics involved.
Other factors could also affect sentencing. Factors that could enhance the punishment for a drug possession conviction include (but are not limited to):
- if death or serious bodily injury occurred in connection with the drug possession charge
- if life-threatening violence or force was used by the defendant
- if the defendant is a repeat felony offender
The more aggravating the circumstances surrounding the drug possession, the lengthier the jail sentences and the steeper the fines. So, if you or someone you know gets charged with drug possession, the best advice is to contact a criminal defense attorney as soon as possible.
Lauren Blair is a lawyer who writes for the legal site, FreeAdvice.com. She has over 25 years of experience in litigation.