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What is constructive possession?

On Behalf of | Mar 10, 2019 | Drug Charges |

If you face drug charges in West Virginia, this is no fun whatsoever. If convicted, you could spend considerable time in prison. You could also face having to pay substantial fines.

It goes without saying that in order to convict you of any drug crime, however, the prosecutor must prove that you controlled, owned and/or possessed the drugs on which your case is based. Basically, (s)he has two ways to do this. She can prove it by actual possession or by constructive possession.

As you might expect, proving actual possession does not usually pose a problem for the prosecutor. All (s)he needs is a law enforcement officer to credibly testify that (s)he found the drugs in your pocket or somewhere else on your person. As FindLaw explains, though, proving constructive possession makes the prosecutor’s job considerably more difficult. Here the prosecutor must rely on the circumstantial evidence surrounding the drugs’ recovery. If this circumstantial evidence is strong enough, the jury can reasonably infer that you possessed, owned and/or controlled the drugs and convict you of the precise crime(s) charged against you. If not, then the jury must acquit you.


To better help you understand the doctrine of constructive possession, assume the following four facts to which the law enforcement officer credibly testifies:

  1. (S)he stopped you for an alleged traffic infraction.
  2. You had two passengers in your car with you.
  3. (S)he conducted a legal search of your car.
  4. (S)he found illegal drugs in your locked glove box after you voluntarily produced its key.

Based on the officer’s testimony, the jury can reasonably infer that the drugs belonged to you since you had the only key to your glove box and therefore controlled the drugs hidden there.

Now assume the same first three facts, but change the fourth one. In this example, assume the officer testifies that (s)he found the illegal drugs in your unlocked glove box. Under this set of facts, the jury cannot make any inference, reasonable or otherwise, as to who owned the drugs. It could have been you, but it just as easily could have been one of your passengers. All three of you had equal access to your unlocked glove box, and all three of you had equal opportunity to stash the drugs there. The jury consequently must acquit you.

This is general educational information and not intended to provide legal advice.