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Litigation Blog.
The seasoned lawyers and litigators at The Rubinstein Law Firm are here to share their insights with you.

What is constructive possession?

If you find yourself facing drug charges, the constructive possession doctrine could mean the difference between your conviction and acquittal.

Given that the prosecutor cannot obtain your conviction for any drug charge without first proving that the drugs in question belonged to you, FindLaw explains that he or she has two options by which to prove this: actual possession and constructive possession.

Actual possession

To prove actual possession, all the prosecutor needs is the testimony of a law enforcement officer that he or she retrieved the drugs from your person, such as in your pocket, or some place very near you, such as your backpack or purse.

Constructive possession

Unlike the direct evidence on which actual possession rests, constructive possession rests on circumstantial evidence regarding the conditions surrounding the officer’s retrieval of the drugs. In other words, in order to convict you by means of constructive possession, the prosecutor must produce evidence that allows the jury to infer without reasonable doubt that you either possessed or controlled them.

As an example, assume the officer testifies to the following:

  • That he or she stopped you for an alleged traffic violation
  • That two passengers rode in your car with you at the time of the stop
  • That while legally searching your car, he or she retrieved a baggie containing illegal drugs from your unlocked glove compartment

Under these facts, no jury can convict you of possessing or controlling the drugs, or consequently of any drug charges whatsoever. Why? Think about it. Whose drugs were they? Your two passengers had the same opportunity as you to place the baggie where the officer found it. Therefore, no one can say with reasonable certainty which of the three of you actually owned or controlled the drugs.