What is constructive possession?

What does constructive possession mean?

Did you know that you can be convicted of drug possession, or even drug trafficking, when the drugs weren’t actually in your possession? Even if they were someone else’s drugs?

In State v. Stewart, decided on May 19, 2021, the SC Supreme Court reversed convictions for trafficking in heroin and simple possession of oxycodone because the trial court told jurors that they could “infer” knowledge and possession if the drugs were found on the defendant’s property.

They also revisited the definition of constructive possession – including how trial courts must explain to jurors the elements of constructive possession that must be found beyond any reasonable doubt.

WHAT DOES CONSTRUCTIVE POSSESSION MEAN?

“Actual possession” is where drugs are found on someone’s person – for example, in their pocket, hidden inside a jacket, or in their hand.

When drugs are found near a person – in a vehicle, in a residence, or on the ground nearby, the person can still be arrested and convicted for possession (or trafficking, depending on the weight of the drugs), but the State must prove constructive possession:

1. The right to exercise “dominion and control” of the drugs, and
2. Knowledge, which includes the intent to control the disposition or use of the drugs.

The Right and Power to Control the Disposition of the Drugs (Power)

In an “actual possession” case, the State can prove that a defendant had “the right and power to exercise control over the drugs” by proving that the defendant “had actual physical custody of the drugs.”

In a constructive possession case, however, the State must prove that a defendant had “the right and power to exercise control over the drugs” using other evidence.

For example:

• The drugs were found in the defendant’s “grab area” – on the ground at someone’s feet, on the floorboard in front of a person in a car, or under the seat cushion where a person was sitting,
• The drugs were found in a vehicle that is owned by the defendant or that the defendant is driving,
• In a storage facility that is owned or leased by the defendant,
• The defendant made incriminating statements that indicate the drugs belonged to them, or
• A co-defendant or other witness testifies that the defendant owned the drugs, had the drugs in their possession, or tossed the drugs to the ground as police walked up.

Mere presence at the location where the drugs were found is not enough to convict someone of drug possession or trafficking.

If the State proves that a defendant had “the right and power to exercise control over the drugs,” that is still not enough – the State must also prove a second element: that the defendant had knowledge that the drugs were there, which includes the specific “intent to control the disposition of the drugs.”

Knowledge and Intent to Control the Disposition of the Drugs (Intent)

Knowledge doesn’t just mean “I saw the drugs there on the kitchen table.” In the context of a constructive possession case, knowledge means “the intent to control the disposition or use of the drugs:”

Second, the State must prove the defendant had knowledge of the drugs and the intent to control the disposition or use of the drugs. In slightly different terms, these are the same two elements we set forth in Ellis,⁵ Brown, Lane, and Hudson. See Lane, 271 S.C. at 73, 245 S.E.2d at 116 (holding “the accused has such possession as is necessary for conviction ‘when he has both the power (actual or constructive control) and intent to control its disposition or use’” (quoting Ellis, 263 S.C. at 22, 207 S.E.2d at 413)).

The first element can be described as having the power to control the disposition or use of the drugs, and the second element can be described as having the intent to control the disposition or use of the drugs.

If either element is not proven beyond any reasonable doubt, the jurors must return a verdict of not guilty.

IS THERE AN INFERENCE OF KNOWLEDGE AND POSSESSION WHEN DRUGS ARE FOUND ON A DEFENDANT’S PROPERTY?

The Supreme Court in Stewart reversed the defendant’s convictions for simple possession of oxycodone and trafficking in heroin because the trial court instructed the jury that “[t]he defendant’s knowledge and possession may be inferred when a substance is found on the property under the defendant’s control.”

Stewart overrules the 1987 case State v. Adams, where the Court held that “[t]he proper charge on constructive possession is to instruct the jury that the defendant’s knowledge and possession may be inferred if the substance was found on premises under his control,” and it is now reversible error for a trial court to give this jury instruction.

For the Court, Yes

Is there an inference that the defendant had knowledge and possession if the drugs were found on premises under his or her control?

There is for purposes of directed verdict but not jury instructions. If the defendant moves for a directed verdict based on insufficient evidence, the Court can deny the motion for directed verdict if there is evidence that the drugs were found on premises that were under the Defendant’s control – his or her home, vehicle, or “grab area,” for example.

For Jury Instructions, No

The problem addressed by the SC Supreme Court in Stewart was a jury instruction that informed the jurors that there was an inference.

In Burdette, we stated “some matters appropriate for jury argument are not proper for charging. ‘Do jurors need the court’s permission to infer something? The answer is, of course not.’” 427 S.C. at 503, 832 S.E.2d at 583 (quoting State v. Belcher, 385 S.C. 597, 612 n.9, 685 S.E.2d 802, 810 n.9 (2009)).

There may be an inference that a defendant had knowledge and control of drugs that were found on premises under the defendant’s control, the attorneys can argue that inference, and the Court can deny a directed verdict based on that inference, but it is reversible error for a trial court to instruct jurors that there is an inference.

GOT AXELROD?

If you have been charged with a drug crime in SC, including simple possession, drug distribution, or trafficking, call now at 843-916-9300 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.