The term "constructive possession" denotes a legal theory by which prosecutors can charge you with possession of a substance, even if you never actually possessed the substance.
I use marijuana as an example because that is, in my experience, the most common "constructively possessed" substance.
In order to understand what constructive possession is, I must first explain "actual" possession.
"Actual" possession means that somebody is physically in control of a substance. If a police officer finds a baggie of marijuana in your pocket, then you are actually in possession of the drug because it is on or about your person. If you are alone in your car and a police officer spots a baggie of marijuana in your center console, you are still in actual possession of it because it is "about" your person. That is, it is close enough to you that you can exercise control over it. And, of course, there is nobody else around.
Now, if a police officer pulls over a car with 5 occupants and discovers a baggie of marijuana, the law permits that officer to charge each and every one of those occupants with possession of marijuana if the officer determines that each person had knowledge of the substance, and had the ability to exercise dominion and control over it.
In other words, if you and your buddy are driving and you get stopped by a police officer, and the officer discovers a baggie of marijuana inside of the car, you and your buddy can be charged equally with possession. This is called "constructive possession."
On those facts alone, however, I would be more than happy to file a motion to dismiss. As a criminal defense attorney, I always look to see how I can get the charges dropped against my client. In the above set of facts, there is no proof that either party knew of the presence of the substance. Now, the owner of the vehicle will likely be charged regardless because the drugs were found in his car. However, the passenger should not be charged because there is no evidence that the passenger had knowledge that there was marijuana in the car. This will not stop the police from arresting you, however.
So how do police and prosecutors prove constructive possession cases?
Cops like to use constructive possession as a tool to get people to talk. Let's say a cop pulls over a car with 5 occupants. The officer approaches the window and sees a small baggie of marijuana in the center console. The officer then asks, "Whose weed is this?" To which, nobody responds.
The officer, in an effort to determine the owner of the marijuana, will then tell the occupants that he is charging each and every one of them with possession of marijuana unless somebody comes forward.
At that point, a good friend not wanting to see their pals in trouble usually fesses up and admits that the marijuana is their's.
When that happens, the officer will usually only arrest that person. But by making the statement, that person has just made an admission of guilt that will be used in order to prove that that person had knowledge of the substance, and by being in the same car, they had the ability to exercise control over the substance.
The point is, don't ever make statements to police without first talking to a criminal defense lawyer. That is because cops are not your friends. They are out to make arrests. In that scenario, if the person would have kept their mouth shut, sure they may have been arrested, but the charges would not have stood up to challenge.
Cops make decisions out in the field, but in court, the rule of law prevails. Police are not trained the way that attorneys are trained. Cops make mistakes all of the time. It is the job of a qualified criminal attorney to expose those mistakes for the benefit of the client.
Don't believe me about constructive possession? Remember what happened to NBA star Udonis Haslem? He was charged with felony possession of marijuana, but the charges were later dropped. Why? Because there was no evidence that he had knowledge of the marijuana he was accused of constructively possessing. Even though the cop arrested him, when it came time for the Miami-Dade State Attorney's Office to review the case, they declined to file formal charges.
I practice criminal defense in Miami and Broward. I am a former Miami-Dade Assistant State Attorney who has handled countless possession of marijuana cases.
Penalties for possession of marijuana range from Pretrial Diversion (PTD) up to the maximum of 364 days in jail.
If a police officer finds you with marijuana, you may be physically arrested (taken to jail in handcuffs) or issued a written promise to appear (PTA). A PTA is still an arrest.
If you are arrested for possession of marijuana, get in touch with a criminal lawyer right away. There are many things to discuss. Everything from the legality of the police encounter to the elements of proof must be assessed. If the police officer had no right to stop or search you, then the marijuana will not be admissible. Furthermore, if this is a constructive possession case and there is no evidence that you knew of the marijuana (no statements), then the case should be dismissed. However, don't leave it up to prosecutors to dismiss the case on their own. Unlike felony court, misdemeanor court (County Court) doesn't have the same case-screening process. It is up to a good defense attorney to file the appropriate motions when a criminal charge is lacking sufficient evidence.
I can be reached by phone at all times. I encourage you to contact me if you have been arrested and are seeking the services of a criminal defense attorney.