What is Constructive Possession of Drugs?

Can you be arrested and charged with possession of someone else’s drugs? It could happen, under the theory of “constructive possession.”

What is constructive possession of drugs?

It’s a legal fiction that allows the State to prosecute you for “possession” of drugs that were not actually in your possession… What happens if you are standing with some friends in the yard, a cop rolls up, and suddenly a bag of cocaine appears on the ground nearby?

Or, what if you are sitting in a friend’s house when a SWAT team breaks in, handcuffs everyone, searches the house, and finds heroin under the seat cushion where you were sitting?

Even if you did not have the drugs in your possession, you can be arrested and charged with possession of someone else’s drugs. How does that work, and what are some possible defenses?

Constructive Possession is a Legal Fiction

What is constructive possession of drugs? It is a legal fiction.

Actual possession is when drugs are found on your person – in your pocket or in your hand, for example. More often than not, however, people will hide their drugs or toss them before the police arrive. How can the police arrest someone and get a conviction if all the person has to do is toss the drugs on the ground?

To solve this problem, they have come up with the legal fiction of constructive possession – if the drugs are found near you, you can still be charged and, if the State can prove the elements of constructive possession, you can be convicted for the drugs.

What Does the State Have to Prove?

To convict you of constructive possession of drugs, the state must prove:

1) Dominion and control; and

2) Knowledge.

First, they must prove that you had “dominion and control,” or the right to exercise “dominion and control,” over the drugs. Most defendants are not going to testify, “those were my drugs, I absolutely had control over them,” so the State must prove dominion and control through circumstances or witness testimony. For example:

  • If the drugs are found near you – close enough for you to reach out and pick them up;
  • If the drugs are found in a vehicle that belongs to you;
  • If the drugs are found in a vehicle that you are driving;
  • If the drugs are found in your home; or
  • If another witness testifies that the drugs belonged to you.

Knowledge is the second element – the State must also prove that you knew the drugs were there. If you are sitting on your friend’s sofa and drugs are found underneath the seat cushion, you are not guilty of constructive possession unless the state proves that you knew the drugs were there.

How can they prove that?

It depends on the circumstances. For example, if someone testifies that the drugs were in the open and you saw them before they were hidden under the seat cushion. Or, if the drugs were out in the open – on a kitchen table or on the coffee table – it may be hard to credibly claim that you didn’t know they were there.

Defenses to Constructive Possession of Drugs

What are some common defenses to constructive possession of drugs?

First, if the state cannot prove the elements of constructive possession, you should be acquitted at trial or get what is called a directed verdict from the judge at the half-way point in your trial. If the State does not prove that you knew the drugs were there, or if the State does not prove that you had dominion and control over the drugs, you are not guilty.

There are many other defenses that could apply to your circumstances – constitutional violations, mistaken identity, problems with the chemical tests or chain of custody, it just depends on the facts of your case.

Two common issues that arise in constructive possession cases are 1) when the hand of one is not the hand of all, after all, and 2) when someone else “takes credit” for the drugs that you are charged with.

The Hand of One is Not the Hand of All

Did the cop tell you that “the hand of one is the hand of all,” and that’s why they took you to jail?

It may not mean what the cop thinks it means… The hand of one is the hand of all refers to accomplice liability, which is not the same as constructive possession of drugs. If someone commits a crime, you are present when it is being committed, and you participate in the crime, you may be guilty under the hand of one is the hand of all theory.

On the other hand, if you are “merely present” at the scene of a crime, you are not guilty. Mere presence is also a defense to constructive possession – if someone has drugs and tosses them on the ground when the cops show up, but you did not know anything about it, then you are “merely present” and you are not guilty of constructive possession.

The hand of one is not the hand of all. The hand of one is the hand of those who are present and participating in the crime, but that just doesn’t have the same ring to it, does it?

Can’t the Other Guy Just Take Credit for the Drugs?

Sometimes, clients will ask why the co-defendant can’t just “take credit for the drugs.” Can they? In some cases, sort of

You can be arrested and convicted for possession of someone else’s drugs, even if they “take credit” for the drugs. Under the theory of constructive possession, any number of people can be convicted for possession of the same drugs if they had 1) knowledge and 2) dominion and control over the drugs.

On the other hand, if a co-defendant swears that the drugs were his or hers and that you didn’t know anything about them, it can make it difficult for the prosecutor to get a conviction in your case and they might dismiss your charges once they have a guilty plea from the co-defendant.

Drug Crimes Defense Lawyer in Charleston, SC

Grant B. Smaldone is a criminal defense trial lawyer in Charleston, SC who accepts all types of drug cases in the Eastern SC area.

If you have been charged with a drug crime in Charleston, SC or the surrounding area, call now at (843) 808-2100 or schedule a consultation through our website to talk to a Charleston, SC marijuana defense lawyer today.


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