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Whose drugs are they?

With colleges, universities and post-graduate schools all across Texas back in session, you would do well to remember that if you are a student, a drug or other conviction could haunt you for the rest of your life, particularly when it comes to obtaining employment or licensure in your chosen field. Obviously, the best solution to this possible problem is for you to refrain from using illegal drugs or associating with people who do.

Despite your best intentions and efforts to remain drug-free, however, it is conceivable that law enforcement officers could mistakenly claim that you possessed drugs and arrest you therefor. Should this happen, you should be aware of the doctrine of constructive possession. It could play a huge part in your defense.

Actual versus constructive possession

No one need tell you that to convict you of any drug crime, the prosecutor must first prove beyond a reasonable doubt that you owned the drugs that officers recovered. (S)he can prove this in one of two ways: that you actually possessed them or that you constructively possessed them.

Actual possession is quite easy to prove. All the prosecutor must establish, which (s)he generally does through the credible testimony of one or more of the officers involved, is that they recovered the drugs from somewhere on your person, such as in one of your pockets.

Proving constructive possession, on the other hand, is quite another story. Here the prosecutor’s burden is to prove beyond a reasonable doubt that even though the officers failed to recover the drugs from your person, but rather from somewhere you frequent, such as at your home or in your car, the drugs nevertheless belonged to you. The only way she can prove this is by the circumstantial evidence surrounding the drug recovery. If the circumstantial evidence is strong enough, the judge or jury can reasonably infer that you owned or controlled the drugs and therefore possessed them.

Sufficient circumstantial evidence example

As with other rather difficult legal concepts, you can understand constructive possession most easily by way of examples. In the first one, assume that officers legally stopped your car while you and three passengers were in it. Assume that they then legally searched it. Assume further that they discovered drugs in your locked console, whose key you provided them upon their request. These circumstances give rise to sufficient evidence to convict you of drug possession. Why? Because you controlled the drugs by virtue of controlling their hiding place to which you held the only key. Since you controlled them, the judge or jury can reasonably infer that you owned them. So they convict you.

Insufficient circumstantial evidence example

In this second example, again assume that officers legally stopped your car with you and your three passengers in it and once again conducted a legal search thereof. This time, however, they discovered the drugs in a baggie hidden under the front seat. This set of circumstances is nowhere near sufficient evidence to convict you of drug possession. Why? Because, while it was your car, any of your three passengers had just as much access to the drugs’ hiding place as you did. The judge and jury cannot reasonably determine who owned or controlled the drugs, and consequently must acquit you of drug possession.

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1510 Santa Fe, Suite 500
Weatherford, TX 76086

Phone: 817-757-4194
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