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Understanding constructive possession

Facing drug charges in Texas is no laughing matter. Depending upon the type and quantity of drugs you allegedly possessed at the time law enforcement officers arrested you, you could spend a considerable period of time in prison and/or be required to pay substantial fines if convicted

It goes without saying that to convict you of any drug crime, the prosecutor must first prove that you possessed the drugs in question. (S)he can do this in two ways, however, by proving that you actually possessed them or by proving that you constructively possessed them.

Actual versus constructive possession

Actual possession means that the officers recovered the drugs from your person, such as from one of your pockets. Constructive possession, on the other hand, is the legal doctrine that says that even though officers did not recover the drugs from your person, the circumstances surrounding their recovery can allow the judge and/or jury to reasonably infer that you owned or controlled them, hence possessed them.

Sufficient circumstantial evidence

Understanding constructive possession is easiest by way of example. Assume the officers stopped your car while you had passengers in it. Assume further that they conducted a legal search of your car and discovered the drugs hidden in its locked console. Finally assume that they legally obtained the console key from you. Under these circumstances, the judge and/or jury can reasonably infer that since you were the only person with a key to the console, you controlled the drugs’ hiding place and therefore possessed them.

Insufficient circumstantial evidence

In this example, assume again that officers stopped your car while you had passengers in it and conducted a legal search. This time, however, they discovered the drugs hidden in your unlocked console or underneath one of the seats. Obviously you and all your passengers had the same opportunity to hide the drugs. Under these circumstances, your attorney likely can get your charges dismissed. Why? Because if your case goes to trial, the judge and/or jury has plenty of reasonable doubt as to who actually owned, controlled and possessed the drugs and therefore can make no inference whatsoever as to their actual owner.

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