The criminal law term “constructive possession” refers to situations where a person is said to possess a controlled substance, but that substance is not physically in their control or actually located on their body.

Before a person is said to be in “constructive possession” of a controlled substance, the following two factors must be present:

• The person must have knowledge of the controlled substance’s whereabouts (e.g., on or near their property); and
• That person must have the ability to maintain dominion and control over them or the area in which they are found.

For example, suppose you are traveling in a friend’s car and your friend is pulled over. If the police search the car and find drugs, then you can be charged with constructive possession of a controlled substance. However, mere proximity to the drugs in this scenario will not be enough. The prosecution will also need to prove that you had knowledge that there were drugs in the car.

What is Considered “Knowledge”?

As discussed above, “knowledge” is one of two factors that must be demonstrated in order to prove constructive possession. Generally speaking, showing knowledge is often the more difficult factor to prove out of the two and involves the following components:

• That the defendant knew or was aware of the drug’s presence based on the evidence (e.g., their actions, statements, or other conduct); and
• That a defendant knew or should have known that the drugs were illegal.

If the prosecutor can show that these elements existed, then it means they have satisfied the “knowledge” prong. Therefore, they are one step closer to proving the defendant had constructive possession.

What is Considered the “Ability to Maintain Dominion and Control?”

The “ability to maintain dominion and control” is the second factor that must be demonstrated in order to prove constructive possession. It generally means that the prosecutor must show the defendant had the power and intent to control the drugs.

For example, if the drugs are found in the defendant’s car or in a locker that only the defendant had a key to, then it can be said that they had the “ability to maintain dominion and control” over the drugs. In other words, if the defendant owns or is the only person who has access to the place where the drugs are located, then it is not far-fetched to assume that the drugs belong to them.

In addition, this prong also applies to joint dominion and control over drugs. For instance, if the defendant has a roommate and drugs are found in the living room, then both roommates may have joint dominion and control over the drugs since they were located in a common living area.

However, if the drugs are discovered in a locked container stored in the defendant’s closet, then it may be more difficult to show that both parties shared dominion and control over the drugs.

One final thing to keep in mind about this factor is that the requirements may vary depending on the laws of a state and the facts surrounding a case.

Are Drugs in My House or Car Enough to Show Constructive Possession?

A common question that arises with constructive possession charges is whether a person is responsible for drugs found in a house or car? The answer to this question will depend on the facts and evidence.

As mentioned, simply being within range of a controlled substance is not enough to prove constructive possession exists. There must be other evidence or facts that show there is a stronger connection between the defendant and the drugs like in the above examples (e.g., if the defendant is the only person who possesses a locker key, then it most likely can be assumed the drugs belonged to them).

Another question that frequently comes up in constructive possession cases is what happens if you lend a car to a friend and he gets caught with drugs? Although the answer to this is largely based on the facts of a case, it is possible to be charged with constructive possession in this scenario.

Whether discussing drugs that belong to a roommate or drugs found in a borrowed car, a prosecutor will generally review facts, such as if the defendant knew their roommate or friend used drugs, the specific location of where the drugs were found (e.g., common living spaces vs. behind bolted bedroom doors), and which parties had access or a key to the place.

What is Exclusive Occupancy?

In the context of constructive possession charges, the term “exclusive occupancy” refers to the sole occupant of a home or car. If the defendant is the exclusive occupant of where controlled substances were discovered, then it is more than likely that this fact will prove they had constructive possession of the controlled substance.

Basically, if the defendant is the only person who occupies a space, then it can be assumed that any controlled substances found in their home or car must belong to them to some extent.

What is Non-Exclusive Occupancy?

In contrast, if the defendant is not the sole occupant of the home or car where controlled substances were found, then they are considered a “non-exclusive occupant.” Constructive possession is a bit more difficult to prove when there is more than one occupant and thus will require additional evidence.

In an above example, there was a discussion about living areas and roommates (i.e., non-exclusive occupants). If drugs are found in rooms that all the roommates share and have access to, such as a kitchen, bathroom, dining room, and so on, then it will be hard to prove that only one of the roommates had complete constructive possession over the drugs.

Thus, in order to determine which roommate has constructive possession over the drugs, other incriminating facts and/or circumstances must be taken into account.

What are Incriminating Facts or Circumstances?

State laws will dictate how much weight the court places on specific facts or surrounding circumstances of a constructive possession case. However, there are a handful of incriminating facts and/or circumstances that will generally link a defendant and a controlled substance. This includes:

• When the drugs are in plain view;
• If the drugs are found among the defendant’s personal items;
• When a home is searched and the police find the drugs in the defendant’s bedroom;
• If during a car search, the police find drugs on the same side that a defendant is sitting on or are in the defendant’s immediate proximity;
• When the defendant has ownership of drug paraphernalia or smoking devices;
• If the defendant exhibits suspicious behavior during an arrest; or
• The defendant has ownership or control over the place where drugs or controlled substances are discovered.

While these factors typically prove there is a connection between the defendant and the controlled substances in many cases, just because they are present does not conclusively mean that the defendant will be convicted of constructive possession charges.

The prosecutor will still have to prove all of the elements of the offense beyond a reasonable doubt. The defendant will also be able to raise any available defenses they may have against the charges.

Do I Need a Lawyer for Help with Constructive Possession Charges?

In general, drug offenses are very serious matters that often result in severe penalties. Specifically, the legal consequences for being convicted of constructive possession include heavy criminal fines, jail or prison time, and sometimes even loss of your driver’s license.

Since the outcome for drug cases heavily rely on state criminal laws, you should contact a local drug lawyer if you are facing charges for possession of a controlled substance.

Your attorney can help you prepare a case, determine if there are any defenses available to raise against your charges, and provide representation in court. Your attorney can also make sure that your rights as a criminal defendant are being protected and that you achieve the best possible outcome based on the facts of your case.