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What is constructive possession?

Imagine you go to your friend’s place. You open the door, and a dog races up to sniff at your leg. As it wags its tail, you may wonder: When did your friend get a dog? You ask, and your friend says it’s not his. He’s just dog-sitting.

You assumed that because the dog was inside your friend’s apartment, it belonged to your friend. Your friend lives there and has the key. He controls the apartment, so you might assume he controls everything inside, even when he isn’t home. This is constructive possession. Though dog-sitting is not a crime, assumptions about ownership like this can have serious consequences in criminal cases.

When does constructive possession matter?

When people are charged with drug-related crimes, possession is often a central question. In fact, people often face charges simply for possessing:

  • A controlled substance
  • Marijuana
  • Paraphernalia

In cases when the police find larger quantities and other objects associated with distribution, they might also bring charges for possession with intent to deliver.

Of course, it makes a huge difference if the police catch someone with illegal drugs physically on their body or if they arrest someone who was simply in the same place as the drugs or who owned the apartment where the drugs were found.

In the case of constructive possession, the prosecution must prove possession beyond a reasonable doubt.

What are the standards for proving constructive possession?

In 1983, the Pennsylvania Supreme Court took a close look at constructive possession. The Court had been asked to decide if the Superior Court had correctly overturned a trial court’s ruling. The Superior Court had ruled that a trial court failed to prove constructive possession in the case of a man whose wife could have also possessed the drugs in question.

After reviewing the case, the Supreme Court found that the Superior Court had erred.

In its ruling, the Supreme Court outlined three hurdles that prosecutors must clear to prove constructive possession:

  • That a person knew about the substance
  • That the person could control the substance
  • That the person intended to use that control

Notably, the Court also said that multiple people could share constructive possession of a substance. In the 1983 case, the Court ruled that the evidence showed both the man and his wife shared ownership of the drugs the police had found.

The larger picture always matters

Specific circumstances matter. The Supreme Court acknowledged this. After it outlined the standards for proving constructive possession, it pointed out that no case is tried in a vacuum. Small changes can cast doubt on someone’s ownership. For example:

  • Imagine the police found drugs in someone’s apartment, but that person had a roommate. Neither were home when the drugs were found, and the drugs had been hidden in a location either roommate could have reached.
  • A man nodded “yes” when the police asked if he lived in the apartment where they found drugs, but the police asked the question in English and the man didn’t understand English.
  • The police found unregistered firearms in the back of a woman’s car after she had let her boyfriend borrow them.

In such cases, the jury needs to understand the whole picture. There may be evidence that suggests ownership, but there may be other factors at play too. How the jury views these factors often depends on the way they’re presented in court.