Constructive Possession Charges: When The Drugs Really Weren't Yours!

Posted on: 4 August 2015


Your college roommate seemed like an okay guy to share space with - until the night that the police raided your dorm room and you both ended up arrested because he's been dealing a few drugs to supplement his income. Why would you end up arrested along with him?

It's called "constructive possession" and it's used to convict people every day for the possession of illegal drugs, even when they aren't the actual owners. Here's what you should know about constructive possession and your possible defenses.

The prosecution only has to prove two things.

It doesn't matter that the drugs were found on your roommate's side of the dorm room, under his pile of clothing. You don't have to have the actual possession of an illegal substance in order for the prosecution to prove constructive possession. Instead, the prosecution only needs to prove that:

  • you knew that the drugs were present on the property.

  • you had the ability to exert some sort of authority or control over them.

Generally, the presumption is that if the drugs were in a room that you both had access to, you both had constructive possession of them - even if you're squeezed into a two-person dorm room where you don't exactly have a lot of choice about sharing space.

Your attorney can fight the charges two ways.

Constructive possession charges are clearly circumstantial cases. After all, it's different than being found with the drugs in your back pocket. That gives your defense attorney the ability to attack the charges on both prongs of the charge.

In order to demonstrate that you knew nothing of the drugs in the room and had no control over them, your attorney is going to look at several different factors:

  • the exact location that the drugs were found. The more cleverly they were hidden and the more clearly that they were within the other person's area of the dorm room, the better. This is why it is always smart to maintain a clear division of space between you and a roommate that you don't know extremely well.

  • the type of drugs that were found. It might be harder to deny that you noticed the distinct odor of marijuana if it was being stored (or used) in your dorm room. However, many drugs don't leave tell-tale smells that would tip you off.

  • how often you were present in the room or if there is evidence that you were present during any drug sales. This is one situation where it is clearly to your benefit if you spent long hours at a library or lab and your keycard proves your coming and goings from the dorm.

  • a lack of evidence that you profited from any drug sales. If the prosecution is unable to show that you've made any unusual deposits to your bank account, carry large amounts of cash, or seem to be living well beyond your means, that can help establish to a jury that you weren't involved in the drug sales.

Keep in mind that prosecutors seeking to make a stronger case against one defendant may try to hang charges like constructive possession over the head of another defendant, hoping to literally scare up more evidence that they can use. They may offer you a deal if you agree to testify against your roommate. Don't even discuss something like that without an attorney present - even the smallest admission of knowledge that your roommate was doing "something" could end up being used against you later on in your case. Contact Jeffrey D. Larson, Attorney at Law or a local criminal defense attorney for more information.