If you have never heard the term “constructive possession” before, it is a legal doctrine that allows a prosecutor to convict you of drug possession even if you did not actually possess the drugs at the time of your arrest. FindLaw explains that when a prosecutor uses constructive possession in order to prove his or her case, (s)he must rely on strong circumstantial evidence that convinces the jury beyond a reasonable doubt that the drugs did indeed belong to you. 

If (s)he has evidence of actual possession, (s)he would much rather go with that. Why? Because when the officer testifies that the drugs were found in your pocket, purse, etc., no question remains about your ownership of them. 

Constructive possession example 

This example should make constructive possession more understandable. The officer gets on the witness stand and testifies as follows: 

  • (S)he pulled you over for allegedly speeding. 
  • You had three passengers in your car. 
  • You owned the car per your registration papers. 
  • You allowed him or her to search your car without a warrant (which is something you should never do). 
  • (S)he discovered drugs in your locked console after you voluntarily gave him or her the key to it. 

Under this strong circumstantial evidence, the jury likely will convict you. Why? Because they can reasonably infer that you possessed the drugs since you owned the car and the only key to the drugs’ locked hiding place. 

Now change one piece of the officer’s testimony. If (s)he testifies that (s)he found the drugs in your unlocked console, the jury almost certainly will acquit you. Why? Because any one of your three passengers could have stashed the drugs there just as easily as you could have. Consequently, the jury can make no reasonable inference as to which of you actually owned and possessed them.