If you face some type of drug charge, it goes without saying that the first thing the prosecutor must prove beyond a reasonable doubt is that you possessed the drugs that law enforcement officers found and confiscated. FindLaw explains that the prosecutor can use two separate ways to prove this: actual possession or constructive possession.
Actual possession means exactly what the term implies. The officers found the drugs somewhere on your person, such as in one of your pockets, your billfold, your purse, etc.
The prosecutor faces a more difficult challenge if (s)he must go with constructive possession. Here the officers found the drugs somewhere not on your person, but likely in a place that you own, such as in your car, your home, etc. But did you actually possess, a/k/a own, a/k/a control, those drugs? Only the circumstances surrounding the “drug bust” can determine that. If the circumstantial evidence proves strong enough, the judge or jury can reasonably infer that you did. If not, you must receive an acquittal.
Consider the following scenario where the officer testifies as follows:
- (S)he stopped you for an alleged traffic violation.
- (S)he observed you and three passengers inside the car.
- (S)he determined from your registration that you owned the car.
- (S)he asked if (s)he could search it and you gave your consent.
- (S)he found illegal drugs stashed in your locked glove box after you produced its key.
Under these facts, the judge or jury can reasonably infer that you owned the drugs since you and only you controlled their hiding place.
Had the officer testified that (s)he found the drugs in your unlocked glove box, the judge or jury cannot make the same inference. Why? Because any of your three passengers could just as easily have hidden the drugs in your glove box as you. Consequently, no one can say for certainty who owned them, and the judge or jury cannot convict you of any crime associated with those drugs.