Constructive possession is a legal doctrine you probably have never heard about. If you find yourself facing drug charges, however, it can prove very helpful in your defense.

Keep in mind that before getting to the specifics of the drug crime that law enforcement officials allege you committed, the prosecutor must establish that you owned, possessed or controlled the drugs that form the basis of the prosecution. He or she can do this in one of two ways: prove you actually possessed them or prove you constructively possessed them.

Constructive possession proof

Actual possession relies on the fact that officers recovered the drugs from somewhere on or very near your person, such as from your pocket or purse. Conversely, constructive possession relies on the circumstantial evidence surrounding the drugs’ recovery to prove that you owned them. If this circumstantial evidence is strong enough, the jury can reasonably infer that you owned them.

Constructive possession example

Suppose, for example, that an officer pulls you over for speeding or some other alleged traffic offense one day. Suppose further that you have three friends in the car with you at the time. At trial, the officer testifies that he or she found the illegal drugs in the locked console of your vehicle after a legal vehicle search during which you provided the console’s key. This circumstantial evidence proves that you constructively possessed the drugs. Why? Because you and only you possessed the key to your locked console.

Now change one small but crucial fact in the above testimony. The officer testifies that he or she found the illegal drugs in your vehicle’s unlocked console. This circumstantial evidence clearly falls below the prosecutor’s beyond-a-reasonable-doubt burden of proof. Why? Because not only you, but also any of your three passengers had equal motive and opportunity to put the drugs where the officer found them. Since the jury has no way to determine which of you in fact placed the drugs in your unlocked console, they must acquit you of the drug charge.