Proving Drug Possession

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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To convict a defendant of drug possession, the prosecutor must demonstrate that the defendant had actual possession, constructive possession, or joint possession over the illegal drugs. Proving actual drug possession is usually a simple matter, and constructive possession, while more difficult, can be demonstrated inferentially. Without making such a showing, however, a defendant may successfully avoid conviction for possession. 

Actual vs Constructive Possession

Actual possession generally means that the drugs were found on the defendant’s person. “Person” can mean within a pocket, in a purse, hidden in socks or shoes, or even swallowed. Constructive possession is when the drug is found in an area over which the accused had “dominion and control.” Generally speaking, “dominion and control” means that a person had the ability and intent to control the drugs in question. It does not have to be proved – it can be demonstrated through inferences. For instance, if drugs are found in an individual’s personal belongings, it may be inferred that they had dominion and control over the belongings, and therefore the drugs. Similarly, a person can be charged with constructive possession without even being near the drugs when they were discovered. If, for example, a search is conducted of a home and drugs are found in the bedroom, the resident/homeowner could be charged with possession of a controlled substance, or constructive possession, because the resident presumably has dominion and control over their own home. 

Joint possession of a controlled substance is when two or more people have actual or constructive possession over the drugs. This can occur when, for instance, the police stop a vehicle carrying passengers, and discover drugs in the middle console of the car. The driver and the passengers of the car in such situations may all be charged with constructive possession of the drugs.

Proving Drug Possession

Of the three main types, actual possession is the easiest to prove – the drugs were found on the person. Constructive possession is more difficult; in the earlier example where drugs were found in a homeowner’s bedroom, the prosecutor generally must show: 1) that the homeowner knew the drugs were there, 2) that s/he knew, or should have known that the drugs were illegal, and 3) that s/he had “dominion and control” over the drugs.

If the homeowner was out of town during that time and had already rented out her room in the house to someone else, it will be more difficult for the prosecutor to establish constructive possession against the homeowner. Even if the homeowner knew the renter, and knew he had and used drugs, establishing the “dominion and control” is difficult, as the renter also has access to the bedroom at this time. Further, just because an individual is in close proximity to the drugs, this alone is never enough to prove constructive possession. These facts combined make it difficult for the prosecutor to show that either the renter or homeowner had constructive possession over the drugs.

Possession with Intent to Distribute

If an individual is in possession of a large quantity of drugs or drug paraphernalia, a charge of simple possession can rise to the level of “possession with intent to distribute.” For certain drugs, such as heroin, methamphetamine, and cocaine, being charged with possession with intente to distribute can lead to a dramatic increase in mandatory minimum penalties. Possession with intent to distribute must often be shown through circumstantial evidence, unless the offender is caught in the act, or confesses to selling drugs. To prove possession with intent to distribute, all the elements of simple possession must be shown, plus any other circumstantial evidence such as the amount of drugs possessed, how the drugs were packaged, and whether drug paraphernalia or measuring equipment was recovered as well.

Getting Legal Help for Drug Possession 

If you have been charged with drug possession, or any other drug-related criminal charges, you should contact a criminal defense lawyer immediately. Drug convictions can have a dire effect on your life, and getting the advice and assistance of an experienced criminal defense attorney is paramount to the success of your case.

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