At the Macaulay Law Offices, LTD, in Minnesota, we represent numerous people accused of having committed some sort of a drug crime. Consequently, we know all about the legal doctrine of constructive possession and how it can help you should you face drug charges.
You need to realize that before a jury can convict you of an alleged drug offense, the prosecutor must first prove to them that the drugs in question belonged to you and/or that you owned or controlled them. And (s)he must prove this beyond a reasonable doubt. As FindLaw explains, (s)he can prove your ownership in one of two ways: actual possession or constructive possession.
Actual possession means exactly that; i.e., that you actually possessed the drugs in question. Proving actual possession relies on direct evidence, such as the credible testimony of a law enforcement officer that (s)he found the drugs in your pocket, your billfold, or some other place on your body. Conversely, constructive possession means that the jury can reasonably infer from strong circumstantial evidence that the drugs belonged to you and not someone else even though officers found them somewhere other than on your body.
Understanding the difference
Assume the following credible testimony by an officer:
- (S)he observed you commit an alleged traffic violation while driving down the street and pulled you over.
- (S)he noticed that three passengers likewise occupied your car at the time.
- After verifying your ownership of the car, (s)he asked you if (s)he could search it and you gave your permission.
- During his/her search, (s)he noticed that the console between your driver and passenger seats was locked.
- (S)he asked you for its key and you gave it to her.
- (S)he then discovered illegal drugs in your console.
Given this strong circumstantial evidence, the jury has no problem reasonably inferring that the drugs belonged to you. After all, the officer found them in your locked console to which you held the only key.
Now assume the same basic testimony except for one crucial difference. The officer testifies that (s)he found the illegal drugs in your unlocked console. Given this weak circumstantial evidence, the jury cannot reasonably infer who owned the drugs. You and all three of your passengers could equally access your unlocked console, and all four of you had equal opportunity to do so. The prosecutor consequently fails to sustain his/her burden of proof and the jury must acquit you of all charges.
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