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Understanding constructive possession

If you face Virginia drug charges, you could also face a substantial prison sentence and/or fine if the prosecutor convicts you of the crime with which you are charged. Whatever the drug crime that law enforcement officers allege you committed, however, in order to convict you of it, the prosecutor must first prove that the drugs in question actually belonged to you.

(S)he can attempt to prove this by one of two ways: that you actually owned the drugs or that you constructively owned them. As its name implies, actual possession requires direct proof that you personally owned the drugs. For instance, the prosecutor can prove actual possession if the officers who arrested you testify that they recovered the drugs from your jacket pocket at the time of your arrest and the judge or jury believes their testimony.

Constructive possession likewise requires proof of your ownership of the drugs, but here the prosecutor must rely on circumstantial evidence to that effect. Only if that circumstantial evidence is strong enough can a judge or jury convict you since constructive possession requires him, her or them to make a reasonable inference of your ownership based on the facts and circumstances surrounding your case.

Helpful examples

Constructive possession may seem difficult to understand at first, but actually the concept is simple, as shown by the following examples.

In the first example, assume the following facts:

  1. A law enforcement officer pulled you over for an alleged traffic violation.
  2. You had several friends in the car with you at the time.
  3. The officer legally searched your car as part of the traffic stop.
  4. (S)he found drugs hidden in your locked glove compartment and you gave him or her the key to unlock it.

Given these facts, the judge or jury can reasonably infer that you owned the hidden drugs since you not only owned your car, but also possessed the only means, i.e., the key, by which to access its glove compartment.

In the second example, again assume the first three above facts, but not the fourth one. This time the officer found drugs hidden in your car’s unlocked glove compartment. Given this one new fact, the judge or jury cannot convict you because they cannot reasonably infer who owned the drugs, you or one of your passengers. All of you had equal access to the unlocked glove compartment and there is no way to determine which one of you hid the drugs there unless one of you confesses, which is highly unlikely.

Should your own drug arrest and the circumstances surrounding it more closely resemble the second example than the first, your case likely will never go to trial. Instead, your attorney likely can convince the prosecutor to drop all the charges against you since (s)he cannot prove beyond a reasonable doubt that the drugs that officers allege to be yours actually belonged to you.

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