What is constructive possession in SC?
In most drug cases, the prosecutor must prove possession – this is true for simple possession charges, possession with intent to distribute charges, and even drug trafficking charges.
In many cases, however, a prosecutor can’t prove that a defendant actually possessed the drugs, because the drugs were not found in the defendant’s hand or pocket. More likely, the drugs were found in a vehicle, a residence, or somewhere nearby…
Below, we will discuss how prosecutors get around this problem with the legal theory of “constructive possession,” including:
- The difference between actual possession and constructive possession,
- Why “mere presence” is not enough for a conviction, and
- Why, in many cases, your co-defendant cannot “claim the drugs” to get you off the hook.
What is Constructive Possession?
“Constructive,” in this context, means “fake.”
It is a legal theory that allows the prosecution to pretend that you were in possession of drugs or other contraband when you were not actually in possession…
“Actual possession” is when you really were in possession of the drugs. For example, a police officer walks up to you and says, “What’s that in your hand there?” You open your hand, and he sees you are holding a bag of powder cocaine, plain as day.
If the drugs are in your pocket, in your hand, sitting in your lap, or hidden inside the collar of your jacket, the prosecution’s case is going to be easier for them – they will attempt to prove actual possession without the legal acrobatics required to prove constructive possession when you aren’t actually holding the drugs.
If the drugs aren’t found on your person, they can still get a conviction based on possession, however. When drugs are found in your vehicle, in your residence, or near you – in your “grab area,” the prosecutor can still get a conviction if they can prove:
- Dominion and control – that you had the ability to control the drugs. For example, if the drugs are found in the trunk of your car or a car that you are driving, if the drugs are found in the dresser drawer in your bedroom in your home, or if the drugs are found in your “grab area,” and
- Knowledge – even if the prosecution proves dominion and control, they must also prove that you knew the drugs were there.
“Mere presence” or “mere association” is never enough to convict a person of possession (or any crime).
Cops will often incorrectly tell a person that “the hand of one is the hand of all” means if one of your friends has drugs in their pocket, you all go to jail. It’s not true – you have no dominion or control over what is in your friend’s pocket, and you may or may not know what is in their pockets.
Similarly, if you are standing on the corner when the police roll up on you, and your friend throws a bag of weed on the ground, that doesn’t mean you and everyone else standing there go to jail – they will need to prove that 1) you had the ability to control the disposition of the drugs (not likely if they belonged to your friend and 2) you knew that the drugs were there (before your friend tossed them).
Examples of Constructive Possession
Constructive possession cases are more common than actual possession cases. Some examples include:
- Traffic stops – when police search your car and find drugs on the floorboard, in the glove compartment, or in the trunk, they must prove that 1) you had dominion and control over the drugs and 2) you knew the drugs were there before you can be convicted of possession (or PWID or trafficking).
- Home searches – when police find drugs in your home, hotel room, or other residence, even if it is your home they must prove both 1) dominion and control and 2) knowledge – if your friend brought drugs into your house and you did not participate in holding them or using them, for example, you are not guilty of possession.
- “Sidewalk cases” – often, people will toss their drugs when police approach them on the street. If an officer sees them toss the drugs, that may be an easy case for the prosecution. If the officer finds the drugs on the ground and doesn’t know how they got there, however, it may be more difficult (but not impossible) for the prosecution to prove dominion and control, and knowledge.
What is not constructive possession?
- Your friend has drugs in his pocket and the cop says, “the hand of one is the hand of all,”
- Someone throws drugs on the ground near you as a police officer walks up (and they are not your drugs), or
- A passenger in your car has drugs in their pocket when police search them.
Can My Co-Defendant “Take Credit” or “Claim” the Drugs?
Clients will often ask, “Can’t my co-defendant just claim the drugs and get my case dismissed?”
The answer is usually, legally, “No, they can’t.” As a practical matter, however, the answer is “Maybe.”
Two or more people can be convicted for possession of the same drugs – if the prosecution can prove that both people had 1) dominion and control over the drugs and 2) knowledge that the drugs were there.
Your co-defendant can claim the drugs, if they want to ensure that they get convicted and if their attorney allows them to do it (which is not likely). That alone does not exonerate you, however. Your co-defendant would need to truthfully testify or provide an affidavit that says 1) the drugs belonged to them and 2) you didn’t know about the drugs.
Even then, that doesn’t mean the prosecutor will dismiss your charges. They might dismiss your case based on the co-defendant’s statements, but probably not until your co-defendant has pled guilty and has been sentenced, and only if they believe the co-defendant’s statements and if the co-defendant was the primary target.
They also might take your case to trial to attempt to prove constructive possession despite your co-defendant’s statement if there is any evidence that you knew about the presence of the drugs.
If you are in this position, talk to your attorney immediately about the facts of your case, the evidence against you, the plea offer (if any), the likelihood that you will be convicted at trial, and the likelihood that the prosecutor will take your case to trial once your co-defendant enters a guilty plea, and make an informed decision based on your attorney’s advice and the unique circumstances of your case.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The Thompson and Hiller Defense Firm only accepts criminal defense cases including any kind of SC drug charges.
If you have been charged with simple possession, possession with intent to distribute, distribution, or trafficking of marijuana, cocaine, heroin, or any drug, call the Thompson & Hiller Defense Firm at (843) 444-6122 or contact us online to find out how we can help.