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Understanding constructive possession

At the law offices of Stephen H. Miller in Texas, we represent many clients accused of committing a drug crime. Consequently, we know the serious penalties you face should you become convicted of perpetrating such a crime. We also know, however, that depending on the circumstances of your arrest, the prosecutor may have a difficult time proving that the drugs the law enforcement officer(s) recovered actually belonged to you.

As Findlaw explains, when prosecuting any drug case, the prosecutor has two avenues of proof: actual possession and constructive possession. You, like most people, understand the concept of actual possession even if you have never actually thought about it. As its name implies, if an officer recovers illegal drugs from anywhere on your person, such as from one of your pockets, this proves that you actually possessed the drugs.

Constructive possession proof

Constructive possession, on the other hand, is not so straightforward. Here the prosecutor must present strong circumstantial evidence that will allow the jury to reasonably infer that you possessed the drugs recovered by the officer(s). In other words, the prosecutor must elicit compelling testimony from the officer(s) that the drugs belonged to you and not someone else.

Assume, for instance, that an officer pulls you over while you and three passengers are driving down the street. (S)he alleges that you committed a traffic violation, and as part of his or her investigation, (s)he asks you if (s)he can search your car. Since you know the search will not reveal anything illegal, you give your permission. (As an aside, you should never consent to a warrantless search of your car, your home, or any other place you frequent.)

Imagine your shock and horror when the officer discovers a baggie full of illegal drugs underneath your car’s driver’s seat. Naturally (s)he accuses you of illegal drug possession, arrests you, and takes you to jail.

Under the above scenario, the doctrine of constructive possession dictates that these charges will never stick. At best, the prosecutor will dismiss them once (s)he discovers where the officer found the drugs. At worst, a judge or jury will acquit you when (s)he or they hear the circumstantial evidence. Why? Because given that four people occupied your car at the time of the traffic stop, the circumstances are as follows:

  • All four people had equal access to the drugs’ hiding place.
  • All four people had equal opportunity to place the drugs there.
  • Therefore, no one can reasonably determine which of the four of you possessed, owned or controlled the drugs.

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