To convict you of any drug crime, the prosecutor must first prove that the illegal drugs the officers confiscated belonged to you. If (s)he cannot convince the jury of this crucial fact, all other charges fall by the wayside.

FindLaw explains the two theories the prosecutor can use when attempting to prove that the drugs belonged to you: actual possession and constructive possession. Actual possession means that the officers recovered the drugs from your person or in very close proximity to it. The only proof necessary is that one of the officers testifies to the precise personal space from which they recovered the drugs.

If such was not the case, the prosecutor must rely on constructive possession to prove your ownership, possession or control. A constructive possession conviction, however, depends on the strength of the circumstantial evidence surrounding the officers’ drug recovery.

Constructive possession example

Suppose, for instance, that the officer testifies as follows:

  • (S)he saw you speeding in your car and stopped you for this alleged traffic violation.
  • (S)he saw that three passengers occupied the car with you.
  • (S)he determined that you owned the car based on your registration.
  • (S)he asked your permission to search your car and you granted it.
  • (S)he asked for the key to your locked glove box and you provided it.
  • (S)he found illegal drugs in your glove box.

Based on the above circumstantial evidence, the jury likely will have no difficulties making the reasonable inference that you owned the drugs because you controlled the key to their hiding place. The prosecutor has proved constructive possession.

Suppose instead that the officer testifies that (s)he discovered the drugs in your unlocked glove box. Now the jury cannot make any inferences whatsoever as to who owned the drugs. All four of you had equal opportunity to place them where the officer found you. Consequently, you must receive an acquittal.