Constructive possession of a controlled substance – a drug like marijuana, cocaine, crack, heroin, LSD, or meth – exists where you do not have actual physical possession of an illegal drug, but have both:
- knowledge of the drug’s presence on or about your property and
- the ability to maintain dominion and control over it.
More than one person might have constructive possession of a controlled substance. For instance, a single person may have control and dominion of an apartment in which a drug exists. Or several people may have control and dominion over that area.
If someone is in close proximity to the drug, then the prosecutor might be able to prove actual possession. Constructive possession would not apply.
What is Considered “Knowledge”?
Knowledge has two parts:
The defendant must know that the substance is on or around his or her property. This knowledge does not have to be actual, but for instance, if you allow drug dealers to use your home and operate out of your home, you may have constructive knowledge of the drug even if you actually didn’t see it with your own eyes.
In addition, you must know or should know that the drug is illegal. So, if the drug dealers are dealing in cocaine, you know or should know that cocaine is illegal.
What is Considered the “Ability to Maintain Dominion and Control”?
The ability to maintain dominion and control means the ability to have access to the drug. For instance, you may not have physically handled the drug. But if the drug is in a cabinet in a home you own, then you have dominion and control.
If, however, you rent out the home to another group of people, you may lack dominion and control because the lease gives the renters dominion and control of the property you own during the term of the lease.
If you are the sole occupant of the home or car where a controlled substance is found, your exclusive occupancy is often enough to evidence your ability to exercise control over the substance and your knowledge of its presence.
If you are not the sole occupant of the home or car, possession is slightly more difficult to prove. Where there is more than one occupant, there must be additional evidence, such as incriminating facts or circumstances, that shows both knowledge and control.