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What should you know about constructive possession?

If law enforcement officers and a prosecutor charge you with a drug crime, a court of law cannot convict you unless it believes beyond a reasonable doubt that you possessed or owned the drugs.

The prosecutor can go one of two ways to prove your ownership: actual possession and constructive possession.

Actual possession

Actual possession means when officers recovered the drugs, they did so from somewhere on or near your person. All the court needs is the officer’s testimony that (s)he took the drugs out of your pocket, purse, etc.

Constructive possession

Constructive possession means the prosecutor must prove by circumstantial evidence alone that you not only knew about the drugs but also possessed the ability to control them.

Example

The following example should make constructive possession easier for you to understand. At your trial, the officer testifies as follows:

  • (S)he observed you speeding.
  • (S)he pulled you over for this alleged traffic violation.
  • (S)he noticed two other people in your car: someone in the passenger seat and someone in the back seat.
  • (S)he asked you for your license and registration, from which (s)he determined that you owned the car.
  • (S)he asked to search your car, and you gave him or her permission to do so.
  • (S)he found illegal drugs in your unlocked glove box.

This evidence establishes that you had illegal drugs in your vehicle. It does not establish, however, that you knew they were in your glove box or that you put them there. Both of your passengers had just as much opportunity and ability to put them there as you did.

Consequently, no one can determine who owned the drugs, and the prosecutor failed to meet his or her burden of proof. The court cannot convict you of a drug crime.

State Bar of Georgia
TBA | Tennessee Bar Association
CBA | Chattanooga Bar Association
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