Law enforcement does not always catch alleged offenders will illegal property, such as drugs or weapons, on their person. To charge someone with possession in cases where the alleged offender does not have physical possession of an illegal item, police rely on the constructive possession governing concept.

This doctrine is based upon the concept that law enforcement can reasonably conclude that someone is in possession of an item based on incriminating facts or circumstances. But to secure a constructive possession position, police must prove your guilt.

More than close proximity

Constructive possession is more than just being in close physical proximity to an illegal item. To prove constructive possession, law enforcement must demonstrate that you:

  • Either knew or should have known that the item was illegal
  • Knew the item’s location
  • Had dominion and control over the item

It can be difficult to prove you had both knowledge of the item on your property and dominion and control over it. Law enforcement must prove that you had either direct or indirect knowledge of the substance or weapon and would easily be able to gain physical possession.

Whose Is It?

Police can charge an individual with sole constructive possession, or two or more persons with joint constructive possession over the same contraband. Exclusive occupancy or ownership can play a role in the charges if you are the sole owner or occupant of the place with the item was found.

Case law for constructive possession varies greatly depending on the circumstances and evidence. For instance, an unaccompanied driver would likely face sole possession charges for an item discovered in the vehicle, but joint possession might apply to a car filled with multiple passengers. But constructive possession becomes more complicated if for example, a car parked in a driveway has illegal drugs inside and two people inside the residence have the keys to the car.

He said, she said

Since these cases often come down to your word against another’s, you need a strong legal ally. Although the criminal justice system is supposed to operate under the idea that you are innocent until proven guilty, a defense based on your lack of knowledge of an illegal item is not a solid strategy. An experienced criminal defense lawyer can help demonstrate your innocence.

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