What is Constructive Possession in Drug Cases?

There are certain situations when you expect to be charged with drug possession — such as if you had drugs in your possession (like a baggie with meth in your pocket). But what if you were stopped by the police for a traffic violation, and the officers saw that same baggie in the front seat of your car?  Could you be charged with drug possession?

Depending on the specific facts of the case, you may be charged with drug possession under Kentucky law. A concept known as “constructive possession” allows law enforcement to essentially claim that you possessed drugs even if you did not physically have them on your body. While there are certain elements that a prosecutor must prove to demonstrate constructive possession, understanding that this theory exists can help you make smart decisions.

For example, if your roommate uses meth, it is probably a bad idea to let her borrow your car. In the situation described above, if your roommate dropped drugs in your car, you could be deemed to have “constructive possession” of that illegal substance if it is discovered by the police. Similarly, if your house is searched, you could be charged with drug possession for your roommate’s drugs (again, depending on the facts of the case).

As a Lexington drug defense lawyer explains, the doctrine of constructive possession allows the police to charge you with drug possession even if you don’t actually have physical control of a controlled substance. It is treated the same as actual possession under the law and is subject to the same criminal penalties.

Defining Constructive Possession

The concept of possession seems relatively straightforward: if you physically have something, you possess it. Under the law, that is known as “actual” possession. There is another type of possession — “constructive” possession — where you can be deemed to possess an item even if you do not have it under your physical control.

You must meet two criteria to be considered to have constructive possession of an illicit substance (or another illegal item). First, you must have knowledge that the item is on or near your property. Second, you must be able to maintain control or dominion over the item.

For the first requirement, the prosecution does not have to prove that you have actual knowledge that there were drugs on your property. It is enough to show that based on the circumstances, you should have inferred that drugs were on your property (for example, if your nephew comes to live with you and strangers start to visit your house to see him, staying for just a few minutes and giving him cash). The state does have to prove that you were aware that the substance in question was illegal.

As for the second requirement, the state must prove that you had the power and intention to control the location of the drugs. If you can obtain physical possession of the drugs, you may be considered to have control or dominion. In the example above, if your nephew left the drugs he was allegedly dealing in an unlocked box in a common area of your house, you may be said to have constructive possession.

Importantly, just because an item belongs to someone else does not mean that you cannot also have constructive possession over it. You can also have constructive possession over an item with one or more other people. In other words, if the police find a bag of marijuana in your house, both you and your roommate can be charged with constructive possession of the drug.

Constructive Possession under Kentucky Law

In Kentucky, the doctrine of constructive possession is applied in both drug and gun cases. It is a particularly critical legal theory to be aware of, because the Kentucky Supreme Court has held that a person who is convicted of possession of a controlled substance can have their sentence enhanced if they are found to be in constructive possession of a firearm.

In Houston v. the Commonwealth of Kentucky, the defendant was charged with trafficking cocaine, a class C felony. The prosecution upgraded the charge to a class B felony because he possessed a firearm at the time of the offense.

The defendant, William Houston, was visiting from Detroit and had been staying in Lexington with friends. The police found crack cocaine and three guns at the apartment where he was staying. He argued that none of the drugs or firearms were his — in fact, none were found on his body, or even in the same bedroom where he was staying.

In addition, because he was just a guest at the apartment, he should not be considered to be in possession of the drugs or guns.

The Court found that Mr. Houston was in constructive possession of both the drugs and the guns. It cited previous Kentucky cases where defendants had been found to be in constructive possession of controlled substances, as well as cases from other jurisdictions for constructive possession of firearms.

Finally, the Court found that actual possession of a firearm is not necessary to enhance a sentence when a defendant is charged with possession of a controlled substance.

This case is significant, as it enshrined the rule of constructive possession in Kentucky. It means that even if you are personally not in possession of drugs, simply being around someone with drugs can land you in trouble. Because a drug conviction can impact your life in several ways — from your ability to get financial aid to getting a job — it is important to understand this doctrine.

Work with a Lexington Drug Defense Lawyer

If you have been charged with drug possession based on “constructive possession,” you will need an experienced attorney who understands Kentucky law. Based on the way that courts have interpreted this concept, your Lexington drug defense lawyer can build a solid defense against the criminal charges and help you achieve the best possible outcome.

At Baldani Law Group, we represent clients in Lexington and the surrounding areas, including

Carlisle, Danville, Frankfort, Georgetown, Harrodsburg, Lawrenceburg, Lexington, Morehead, Mt. Vernon, Nicholasville, Paris, Richmond, Versailles, Williamstown, and Winchester. Our services include aggressive legal advocacy on a range of drug charges. To learn more or to schedule a consultation, call our office today at 859-259-0727 or contact us online anytime.