Constructive Possession of a Controlled Substance

If an individual has knowledge of drugs discovered in a certain location, they may be convicted of constructive possession if the prosecutor can show that they also had dominion and control over the drugs. However, because the drugs are not found directly on the person, constuctive possession is much harder to prove than actual possession. While the elements of constructive possession vary slightly by jurisdiction, the prosecutor must generally prove a knowledge element, as well as a dominion and control element. 

Proving the Elements of Constructive Possession

To prove knowledge, a prosecutor usually must show that the individual knew that the drugs were located in or around where they were discovered, and that the individual also knew, or should have known, that the drugs were illegal. To prove dominion and control, a prosecutor must show that the individual had the ability and the intention to control the drugs. This means that mere proximity to illegal drugs, by itself, is not enough to show that an individual had constructive possession. However, dominion and control can be shown through indirect circumstances, such as indirect dominion and control over illegal drugs through another individual, or if the drugs were located within an individual’s personal property. 

Further, dominion and control does not have to be exclusive; there can be joint dominion and control over illegal drugs, and all parties that are found to have both knowledge and dominion and control over them can be convicted of constructive possession. Joint dominion and control can be harder to prove, however, as can sole dominion and control in cases where there is shared property. For example, suppose you share an apartment with three other roommates, and a small bag of cocaine is found in the kitchen drawer. Because you all have access to the kitchen, knowledge of the drugs may be easy to prove, but sole dominion and control will be harder to show since the kitchen is shared property. To show that all parties had constructive possession over the cocaine, the prosecutor must prove each element for each person—that each person had knowledge of the drugs, and that each person had the intent and ability to control the whereabouts of the substance. If a person resides alone, any controlled substance found in the residence would be assumed to belong to that person to some extent. The inference that the person had both knowledge and dominion and control over the cocaine would be far easier to prove.

Defenses to Drug Charges Based on Lack of Possession

Possession of a controlled substance must generally be proven by prosecutors to convict a defendant of other drug-related crimes such as possession with intent to distribute, drug manufacturing, and drug trafficking. Drug charges based on constructive possession rather than actual physical possession provide an attractive defense for drug-related charges because if a case is based on constructive possession it is much more difficult for a prosecutor to prove that the defendant was in possession of the drugs. If the prosecutor can't show that the defendant possessed the drugs, the prosecutor also won't be able to prove that the defendant was in possession of the drugs with the intent to distribute them.