Possession & Constructive Possession of Drugs in South Carolina

Understanding Drug Possession Laws in South Carolina

If you’ve been charged with a drug crime in South Carolina, one of the first questions your attorney will consider is whether the State can actually prove possession.
That single detail, actual vs. constructive possession, can determine whether your case ends in a dismissal, a plea deal, or a not-guilty verdict.

So what’s the difference, and why does it matter so much?

What Is Drug Possession?

Under South Carolina law, possession is a key element of nearly every drug-related offense.
The prosecution must prove, beyond a reasonable doubt, that you possessed the drugs before you can be convicted.

Here’s how possession plays a role in common charges:

• Simple Possession: The State must prove you knowingly possessed an illegal drug.
• Possession with Intent to Distribute (PWID):
  While prosecutors have to prove possession, this is often based on possession of an illegal drug with a weight that gives an inference of distribution.  However, it can also be charged when there is evidence of distribution, such as the presence of scales, Ziplock bags, and/or large amounts of cash. 
• Drug Trafficking: This is often based on weight, similar to possession with intent to distribute, but at a larger weight.  Unlike possession with intent to distribute, the trafficking statutes do not allow for us to argue that the trafficking weight was actually for personal use. If the State can prove possession and the weight, and there are no other legal arguments to suppress the drugs, the State will be able to prove trafficking. The weight depends on the illegal drug.
• There are two ways prosecutors try to prove this: actual possession or constructive possession.

What Is Actual Possession of Drugs?

Actual possession means the drugs were physically on you, such as in your pocket, hand, or bag.

It’s the most straightforward type of possession because the drugs are directly tied to you.

If officers find drugs on your person, they may assume guilt. However, even actual possession cases can be challenged. Your defense attorney can question how the search was conducted, whether the drugs were lawfully seized, or whether someone else had access to your belongings.

What Is Constructive Possession of Drugs?

Constructive possession is far more complicated and far more common in South Carolina drug cases.

It occurs when prosecutors claim you had control over an area where drugs were found and knowledge that they were there.

For example:

• Drugs found under a car seat or in the trunk of a vehicle you own or were riding in.
• Drugs found in a home or apartment you own or were visiting.
• Drugs found on the ground near where you were standing or sitting.

In these situations, the State must prove:

1. You had control over the space where the drugs were found (such as ownership or access to the car or property), and
2. You knew the drugs were there.

If prosecutors can’t prove both, you shouldn’t be convicted.

“Mere Presence” Is Not a Crime

South Carolina law is clear: being nearby is not the same as being guilty.
If you were simply present at a location where drugs were found, but had no control over or knowledge of them, you should not be convicted of possession.  These are situations where it is very important to have an attorney. 

Judges often instruct juries about “mere presence” and a skilled defense lawyer will emphasize this to a jury if your case reaches a trial. 

What If Someone Else Claims the Drugs?

It’s a common belief that if another person admits the drugs were theirs, everyone else will be cleared. Unfortunately, it’s not that simple.

South Carolina allows multiple people to be charged for possession of the same drugs under a theory of constructive possession.
That means even if someone else “takes the blame,” prosecutors might still claim you shared possession. 

However, if your defense attorney can show there’s no credible evidence that you knew about the drugs or controlled where they were found, your case could be dismissed or acquitted at trial.

Fighting Drug Possession Charges in South Carolina

At Thompson & Hiller Defense Firm, we focus exclusively on criminal defense, including all levels of South Carolina drug crimes, from simple possession to trafficking.

Attorney Lacey Thompson defends clients in Myrtle Beach, Columbia, and Lexington, fighting to expose weak evidence, illegal searches, and wrongful assumptions of constructive possession.

If you’ve been charged with:

• Simple possession
• Possession with intent to distribute
• Distribution
• Trafficking
• Or any other South Carolina drug crime

Call (843) 444-6122 or contact us online today to schedule a confidential consultation.