Getting caught with drugs in your actual possession is clearly a serious issue, and you might reasonably expect to end up in handcuffs – but what about situations where the drugs are simply in your close proximity?
Well, the law may call that “constructive possession,” and you can end up in handcuffs anyhow.
How is this fair?
Constructive possession is a legal theory that is used to establish ownership of an object based on what is usually circumstantial evidence.
For example, imagine this scenario: To cope with the cost of housing, you get a roommate. Your roomie is nice enough, and you can’t afford to be picky, so you turn a blind eye to the fact that they’re making edibles with cannabis butter and selling “weed cookies” to their friends. You don’t use marijuana yourself, so you decide to ignore the whole issue – until the police come knocking with a warrant. During the search of your apartment, the police find your roommate’s full cookie jar in the kitchen.
As far as the police know, you’re just as likely to be the owner of the cannabis cookies as your roommate, so they may arrest you both.
Can you fight back?
In any criminal case, the burden is always on the state to prove their case beyond a reasonable doubt. In a constructive possession case, the prosecutor generally has to show that you knew the drugs were there, knew they were illegal and had “control” over them. You can fight a charge by demonstrating that there’s simply not enough evidence that you had any real knowledge of the drugs.
Because there are a lot of nuances to a constructive possession charge and a lot relies on the believability of your claims, the best thing to do in this situation is to quickly invoke your rights and wait until you can further explore your potential defenses.