Possession & Constructive Possession of Drugs

There are two types of drug possession in SC - actual possession and constructive possession.

Although it may seem like legal mumbo-jumbo, the difference between the two can have a huge impact on your case – it could make the difference between going to trial or a dismissal. It could also make the difference between a guilty verdict or an acquittal at trial…

What do each of these terms mean, and how can they affect your case?

What is Possession of Drugs?

Possession is an essential element of most drug crimes in SC, which means the prosecutor must prove possession beyond any reasonable doubt before you can be convicted of the crime.

Simple possession of any type of drug requires proof of possession.

Possession with intent to distribute requires proof of possession and proof of an intent to distribute the drugs.

Trafficking in drugs may require proof of possession depending on how it is charged – in SC state courts, most trafficking charges are based on possession, but they can also be proven by conspiracy without any proof of possession.

Although distribution charges technically don’t require proof of possession, it is implied in the proof of distribution (for example, the drugs passed from your hand to John Smith’s hand).

Prosecutors can prove drug possession in either of two ways: actual possession or constructive possession.

What is Actual Possession of Drugs?

Actual possession is when the drugs are on your person, in your pocket, or in your hand. Whereas constructive possession is a legal fiction that allows the state to say you are in possession of the drugs when you “actually” were not, actual possession means what it says…

What is Constructive Possession of Drugs?

Constructive possession most often comes up when the drugs are found in a car, in a house, or on the ground near you.

If you are not in actual possession of the drugs, the prosecution must prove 1) that you had some control over the area in which the drugs were found (the car belonged to you, or the drugs were found close to you) and 2) that you knew the drugs were there.

For example, if drugs are found beneath the seat or in the trunk of a car that you are riding in, and there is no evidence that you knew the drugs were there, you should be entitled to either a directed verdict from the judge at the mid-way point in your trial or a jury instruction allowing the jury to acquit you based on a failure to prove constructive possession.

If you are at a friend’s house and the police find drugs in the house while you are there, they often will arrest you and charge you with drug offenses even if the drugs were not yours. The law says, however, that you are not guilty unless you had control over the area the drugs were found (was it your house?) and you knew that they were there…

The law also says that the judge must instruct the jury as to “mere presence.” If you were “merely present” at the scene of a crime but you were not participating in that crime, you are not guilty of the offense.

What if My Co-Defendant “Takes Credit” for the Drugs?

Often people believe that if someone else "takes credit" for the drugs, then the other person cannot be charged. This is not exactly true – more than one person absolutely can be charged and convicted for possession of the same drugs under a theory of constructive possession.

But, if the State cannot prove beyond a reasonable doubt that you had control over the premises and knowledge that the drugs were there, your case can be dismissed, or you may be found not guilty at trial.

SC Criminal Defense Lawyer in Myrtle Beach, Columbia, and Lexington

Lacey Thompson only accepts criminal defense cases including any kind of SC drug crime.

If you have been charged with simple possession, possession with intent to distribute, distribution, or trafficking of marijuana, cocaine, heroin, or any drug, call the Thompson & Hiller Defense Firm at 843-444-6122 or contact us online to find out how we can help.