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What Is Constructive Possession?

Being charged with drug possession in Tennessee is no laughing matter. Depending on the quantity of drugs the prosecutor alleges you possessed, you could face stiff penalties if convicted. To convict you, however, the prosecutor must prove beyond a reasonable doubt that the drugs were yours. If officers found them in your pocket, that is pretty straightforward. But what if they found them in the unlocked console of your car and the car was occupied not only by you but also by three passengers? Now it is not so straightforward. Whose drugs were they?

As FindLaw explains, constructive possession is a legal concept that allows a jury to infer that the drugs were yours because you controlled them even though you did not actually have them on your person. For example, if officers found drugs in your car’s locked console and you were the only one who had a key to it, constructive possession says the drugs belonged to you.

Circumstantial evidence

The prosecutor proves constructive possession by means of circumstantial evidence; that is, evidence that requires the jury to draw a reasonable conclusion from the fact of the evidence’s existence and the circumstances surrounding that existence. The locked console reasoning goes as follows:

  1. The drugs were in the console.
  2. The console was locked.
  3. You had the only key.
  4. Therefore, you possessed the drugs because you owned the console key and consequently controlled whatever was in the console.

A constructive possession case is always a battle between the prosecutor and your attorney. For instance, if you loaned your car to a friend the day before officers found drugs in its console, your attorney can present testimony to that effect. If the jury believes the testimony and/or your attorney can show them a date-stamped photo taken by a gas station’s surveillance camera showing your friend behind the wheel of your car, now the jury’s reasoning process goes as follows:

  1. Credible evidence proves that your friend drove your car on the date in question and obviously had its keys.
  2. Credible evidence proves that officers found the drugs in your locked console the following day.
  3. Therefore, based on the evidence, there is reasonable doubt that you locked the drugs in the console.
  4. Since there is reasonable doubt that you committed the crime with which you are charged, the jury must acquit you.

Constructive possession and the circumstantial evidence required to prove it often are very difficult situations. The jury's determination of your innocence or guilt comes down to the quality and strength of the evidence that the prosecution and the defense present to it. This is general information only and is not intended to provide legal advice.