Most would not be surprised to learn that a person who is stopped by law enforcement and found with a baggie of methamphetamine in their pocket will be charged with – and likely convicted of – drug possession. What may be surprising to some, though, is that the prosecution need not prove that the person had drugs in their hands or on their person at the time law enforcement stopped them. The principle of “constructive possession” permits the prosecution to seek and obtain a conviction for drug possession against a person who may be found in proximity to drugs.
Drug possession cases based on a theory of constructive possession often rest on highly-circumstantial evidence. Skilled legal counsel may be able to exploit weaknesses and gaps in the prosecution’s case in order to obtain an acquittal for the person charged.
Constructive Possession Explained
Imagine that law enforcement officers obtain a search warrant for a home and, pursuant to that warrant, enter the house looking for illegal drugs. As they enter the house, they see three individuals standing around a table in the kitchen. On the table is a substance that is later determined to be methamphetamine, yet all three individuals deny that the methamphetamine belongs to them. Who ought to be charged with “possessing” the methamphetamine? Even though all three individuals deny that the methamphetamine is theirs, all three may be said to have “constructively possessed” the methamphetamine.
Constructive possession requires evidence that the individual both knew the nature of the item and intended to or had the actual ability to exercise some control over the item. While there is no exhaustive list available that details all the actions and behaviors that could show intent or ability to exercise control over a controlled substance might include:
- Having keys or the means to access the place where drugs are stored
- Having the illegal substances intermingled with personal effects
- Having the drugs within one’s reach
Constructive possession is treated the same manner as actual possession. A person convicted of drug possession under a theory of constructive possession is subject to the same penalties and consequences that the person would be if the drugs were actually found on their person.
Common Defenses to Constructive Possession
Defending against a constructive possession case typically involves attacking the elements of constructive possession itself. A defendant who does not know that a controlled substance is located in a particular place may escape conviction for drug possession. This may be a viable defense where, for example, a person entrusts a friend or family member to pack their belongings and that person covertly packs drugs into the person’s belongings. Similarly, a person who is told to keep a package of a substance for safekeeping for another and who has no reason to know that the substance was illegal may have a viable defense in a constructive possession case.
Speak with Dawes Legal, LLC About Your Drug Possession Case
If you are charged with drug possession (either having actual possession or constructive possession), having an experienced criminal defense lawyer from Dawes Legal, LLC review your case may be well-advised. We may review the facts of your situation and advise you as to how best to defend yourself against these charges. A conviction for drug possession in Ohio may negatively impact your family and career, so it is important to take such charges seriously. Contact our Columbus office at (614) 733-9999 today and schedule your consultation with us.