Constructive possession of a controlled substance is established where an accused does not have the drugs on him, but did have it in the possession of another person or place for the benefit of himself or another person. Constructive possession requires the following:
- Knowledge of the drugs;
- Intent/consent to have possession of the drugs; and
- Control over the drugs
In order for the prosecutor to demonstrate constructive possession, it must be proven than the accused had knowledge of the drugs beyond “quiescent knowledge” that discloses some degree of control over the drugs.
A common example of constructive possession occurs when drugs are found in a glove box or trunk of a vehicle owned and being operated by the accused at the time of the seizure. A judge will likely infer that the owner of the vehicle had knowledge and control over his own vehicle which establishes that he was in possession of the drugs seized. However, the passenger of that same vehicle may not be in constructive possession of the drugs if they were not in plain view.
Another common example of constructive possession occurs in situations where drugs are found inside a residence. If the drugs are found in the accused’s bedroom, a judge will likely infer that the accused had the required knowledge and control. However, if the drugs are found in a roommate’s bedroom and not in plain sight, the prosecutor will have a very difficult time establishing constructive possession.
