What is constructive possession of drugs?

Drug possession – even marijuana (for now) – is still a very serious crime in Minnesota, with most being felony level offenses. There are two types of possession that the State can pursue when charging you with a drug possession crime: actual possession or constructive possession. The first is rather straightforward, while the second can be more nuanced and certainly open to more defenses.

Actual Possession

A person is in actual possession of the drug if he/she has it on their person or is exercising direct physical control over it at a given time. Examples of actual possession include having the drugs in your pants pocket, in your purse that is on you, or attempting to conceal the drugs elsewhere on (or in) your body. When a person is charged with actual possession of drugs, a legal defense that the person was not in possession of the drugs is much harder to argue… for what are likely obvious reasons. 

Constructive Possession

A person is in constructive possession of the drug if it was found in a place under the person’s exclusive control to which other people did not normally have access, or if the drug was found in a place to which others had access, the person knowingly exercised dominion and control over the drug. Of note to the last part, here, the law recognizes joint possession of a drug – meaning, two people can simultaneously “possess” the same drug and be charged.
In plain English, constructive possession occurs when the State is attempting to argue that you, the defendant, possessed drugs even though they were not found on you. For example, the drugs were found in a vehicle a person was driving and/or registered to them, in the person’s bedroom on the nightstand, or more generally in the person’s apartment even. Importantly, though, constructive possession requires proving dominion and control over the drug, not just the place where the drugs were found. So, there is more nuance than simply finding drugs in a place that is owned/rented by the person.
And, as you can probably guess, a case based upon constructive possession creates more opportunities for a defendant to argue that the State cannot prove the possession element of the crime. Defenses can include arguing that other individuals had access to the location where the drugs were found or simply pointing the finger at someone else.
To raise these type of arguments – among others – requires a strategic approach, and a thorough understanding of the law and how the facts in your case suggest a lack of actual or constructive possession. The North Star team is very creative when pursuing these defenses and knows how to highlight critical factors that work against the State’s argument about constructive possession. And when doing so, it not only can lead to a successful legal defense, but it also opens the door to better negotiated outcomes. Aggressive and thoughtful legal defenses is critical when trying to break down the constructive possession case. And that’s exactly what the North Star team specializes in. Contact us today if you are facing serious drug possession charges.