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Constructive Possession of a Controlled Substance: Those Aren't Mine!

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What is Constructive Possession of a Controlled Substance?

Constructive possession of a controlled substance exists where you do not have actual physical possession of an illegal drug, but have both:

  1. knowledge of the drug's presence on or about your property and
  2. the ability to maintain dominion and control over it.  

Constructive possession can be sole or joint, meaning either an individual or a group of two or more people can be charged with constructively possessing the same controlled substance.  For example, two people living in the same house where only one bag of marijuana is found can both be held liable for constructively possessing the single bag. 

Merely being in close proximity to a drug is not enough to prove constructive possession.  Legally, it is treated the same as actual possession and allows for the same possible defenses.

What is Considered "Knowledge"?

Although laws differ from state to state, generally, knowledge has two components:

  1. You must know that the substance is on or around your property.  This knowledge does not have to be actual, but can be inferred from incriminating facts or circumstances. 
  2. You must know or should have known of the illegal nature of the drug.  

What is Considered the "Ability to Maintain Dominion and Control"? 

The ability to maintain dominion and control has been interpreted differently by almost every jurisdiction in the United States and the meaning often changes from case to case.  Generally speaking, this is when you knowingly have the power and intention - directly, indirectly, or through another person - to control the whereabouts of the substance. Even if you do not have physical possession of the drug, you must be able to gain physical possession of it.   

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

It depends.  Remember, close proximity to a controlled substance is never enough to prove constructive possession. 

Exclusive Occupancy

If you are the sole occupant of the home or car where a controlled substance is found, your exclusive occupancy is often enough to evidence your ability to exercise control over the substance and your knowledge of its presence.  

Non-Exclusive Occupancy

If you are not the sole occupant of the home or car, possession is slightly more difficult to prove.  Where there is more than one occupant, there must be additional evidence, such as incriminating facts or circumstances, that shows both knowledge and control.  

What are Incriminating Facts or Circumstances?

Every jurisdiction puts a different amount of weight on specific facts or circumstances, but these are a few examples of common links between a person and a controlled substance.

  • The drugs are in plain view
  • The drugs are with the person's personal items
  • If in a car, they are found on the same side of the car or are in the person's immediate proximity
  • If in a home, they are found in the person's bedroom
  • Suspicious behavior during arrest
  • Ownership of smoking devices or drug paraphernalia
  • Ownership or control over the place where the substance is found 

Even if any of these incriminating facts or circumstances are present in your case, you still have a number of controlled substance possession defenses available to you.

Do I Need a Lawyer?

If you are accused of constructive possession of a controlled substance or any other drug crime, you should speak to a criminal defense lawyer immediately.  Laws differ from state to state and constructive possession cases are extremely fact specific.   Please speak to an experienced attorney to learn more about your rights, your defenses, and the complex legal system

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 01-23-2018 12:46 AM PST

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