Constructive Possession Case Law Determines the Possession Question

Constructive Possession Case Law Determines the Possession Question
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In criminal law, actual possession of drugs and constructive possession in a drug case are different drug charges. Constructive possession case law decides which is which. However, conviction on either of those charges can result in serious penalties.

These penalties include jail time, heavy fines and a permanent criminal record.


You have actual possession of a controlled substance when you hold it or have immediate access to it. Typically, this means you are holding the drugs in your hand. Additionally, the drugs can be somewhere on your body, such as in a coat or pants pocket.

Lastly, actual possession can mean the police find drugs are in something you are carrying, like a purse or suitcase.


Under constructive possession case law in Indiana, you have constructive possession of illegal drugs when you don’t have immediate access to the drugs. However, you have control of the drugs, or the right to control them.

Constructive possession refers to a situation when an individual does not have actual possession of illegal drugs. Instead, the person knows where the drugs are and can get them.

For instance, the drugs might be in the glove compartment or trunk of your car.

As another example, the drugs may be in your house or your desk at your business.

Or you may have given the drugs to a friend with the understanding the friend is going to return the drugs to you at some point.


Whether law enforcement charges an individual with actual or constructive possession depends on the facts of the case.

However, to convict a defendant of constructive drug possession, the prosecution must prove that you knew the drugs were present and knew they were illegal. In addition, they have to prove you had “control” over them.

Notably, mere proximity to the drugs is usually not enough to convict someone in a constructive possession case.

Of course, possession generally implies that you have ownership of something. Notwithstanding that, they can still charge you with possession of an illegal substance, even if you do not have the drug on your person.

For instance, if the police found drugs in your home on the person of your spouse, they might allege you also constructively possessed the drugs.

As another example, the police could observe you purchase something from a known drug dealer. They then saw you go into your home. Twenty minutes later, they enter your home and find you by yourself, with drugs in a kitchen cabinet.

Again, the police would charge you with possession of those drugs.


The knowledge of the defendant plays an important role in proving constructive possession. Consequently, it is important to understand what makes up knowledge.

Knowledge of a controlled substance requires that the defendant knew of the drug’s whereabouts. It also could mean they should have reasonably known of the presence of the drug.

However, it is not enough to show the defendant knew of the presence of the drugs. Rather, it is also necessary to show the intent to control and the ability to control by the defendant.

In fact, skilled criminal law often characterizes the constructive possession of drugs as having dominion and control over the drugs.

Typically, for the police to allege the defendant had control over the drugs, they must find the drugs in the defendant’s home or business.

Likewise, the prosecutor would argue the defendant had control over the drug if he had someone purchase the drug for him and/or hold it for him.

However, note that the mere agreement to purchase drugs does not — by itself — give the defendant control over the drugs. For instance, if the defendant made a deal with someone to buy heroin tomorrow, he/she would not have constructive possession of it today.

Lastly, remember more than one person can be knowledgeable of a drug’s whereabouts. Therefore, the police can charge multiple people with constructive possession at one time.


There are several legal defenses to constructive possession of drugs charges:

The defendant did not knowingly possess the drug

defendant did not knowingly possess the drugConstructive possession drug charges require the defendant to know the drug was present. Therefore, if someone borrows a car not knowing drugs were in the car, there is no constructive possession.

Illegal search

If the police conducted an illegal search, a judge should dismiss any constructive possession charges. This might happen when the police conduct unauthorized surveillance or plant evidence.

Lack of evidence of possession

A lack of evidence of possession is one of the most common defenses for drug crimes. For example, the police may arrest every passenger in a vehicle because they found drugs on one individual.

A criminal defense lawyer would argue simply being near drugs is not, standing alone, proof of constructive possession.

Legally allowed to possess the drug

Some drugs, like marijuana, are legal with a prescription. Depending on the state, possession of small amounts is also legal. If the defendant followed all guidelines, the police should not file constructive possession charges.

Also, there may be other defenses available. Work with an experienced Indiana drug defense lawyer today to evaluate your legal defense options.


Law enforcement accuses many innocent people of crimes they did not commit. Our firm understands that your liberty is precious to you and your loved ones. Therefore, Alex Mendoza Law is committed to building the strongest case possible for our clients.

As you can see from above, if the police charge you with constructive possession of a drug, the police and prosecutors may have a difficult time producing the evidence to support a charge of constructive possession of an illegal drug. Consequently, if you or a loved one are facing a constructive possession of drugs charge, you will need an aggressive criminal defense attorney. Call Criminal Lawyer Alex Mendoza Law (219) 200-2000 Or email us at for a FREE CONSULTATION.

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