It seems simple enough. Either you have an object in your possession, or you don’t. But the law does not always work the same way as everyday life. For example, you can be found guilty of drug possession in Texas even if prosecutors admit that you did not actually possess the drugs in question.
Legally speaking, this is the difference between actual possession and “constructive possession.” Actual possession is what it sounds like — somebody having an object in their hands, a pocket or otherwise on their person. Constructive possession is a legal concept that states someone can “possess” something even if it is not in their direct physical control.
Proving constructive drug possession
To establish that someone charged with drug possession had constructive possession of the drugs, the prosecutor must prove these two things beyond a reasonable doubt:
- The defendant had knowledge of the object, and
- Had the ability to control it
This is known as “dominion and control.” Examples include keeping drugs in the trunk of your car that is parked in your garage or in a locked safe. If you have the key to the car or know the combination to the safe and could access them, you could be said to be in constructive possession of those drugs, even if you are not at home at the time.
The prosecutor’s challenge
Both control and knowledge must be proven. So if you are a passenger in a car that the police pull over, and the officers find drugs in the trunk that you did not know about, you did not have constructive possession of those drugs. Similarly, a car parked on your driveway with drugs in the trunk likely does not give you constructive possession if you don’t have a key to get into the trunk.