What is Constructive Possession of Drugs?

If you ever watch police or legal dramas on TV, you have probably seen scenes of police patting down suspects and finding drugs on their bodies. You may have also watched scenes where the police discover drugs somewhere else entirely, such as in a backpack near a suspect. This may raise the question of whether the police can charge someone for drug possession if they aren’t actually holding the drugs.

In short, the answer is yes. In Arizona, you can be charged with constructive possession of drugs if you had control over the narcotics in some way. An experienced Arizona criminal defense attorney can defend you against constructive drug possession charges using both factual and legal defenses.

Matthew Lopez Law is committed to helping our clients get the best possible outcome for the charges against them. We thoroughly investigate each and every case, taking a proactive strategy that is designed to get our clients the best possible outcome. Reach out to our law firm today to schedule a free consultation with an Arizona drug crimes defense lawyer.

What Is Constructive Possession of Drugs?

If you have been charged with drug possession in Arizona, then you might assume that the state will be required to prove that you actually had the drugs in your possession. After all, the law requires a prosecutor to prove that you:

1. Possessed or used a narcotic drug;
2. Possessed a narcotic drug for sale;
3. Possessed equipment or chemicals for the manufacture of narcotic drugs;
4. Manufactured a narcotic drug;
5. Administered a narcotic drug to another person;
6. Obtained the administration of a narcotic drug by fraud or deceit; or
7. Transported a narcotic drug for sale, imported into the state, or sold or offered a drug.

However, Arizona law defines “possess” as follows:

• Physically possess or hold something; or
• Have dominion or control over an object.

The second part of this definition is known as constructive possession. With constructive possession, a prosecutor does not have to prove that you were actually holding onto a narcotic drug. It is enough to prove that you have some level of control over the drug.

Actual possession of a controlled substance is a fairly easy thing to prove. For example, consider a situation where the police stop your vehicle on suspicion of driving under the influence (DUI) because you are weaving all over the roadway. They arrest you for DUI, and while patting you down, discover a baggie with Xanax pills in your pocket. That is actual possession: you physically possessed or held the Xanax.

Constructive possession is a bit more nuanced. In the above example, imagine a scenario where the police discover the baggie of Xanax while searching your vehicle after impounding it. The baggie was shoved underneath a rear passenger seat. In this case, law enforcement would have to prove that you had some type of control over those drugs.

This typically involves proving 3 things:

1. Knowledge of the presence of the substance: the defendant must have been aware that the narcotic drug was present.
2. Knowledge of the illegal nature of the substance: the defendant must have known that the substance was illegal.
3. Dominion and control over the substance: the defendant must have had the ability to control or manage the drugs, even if they were not in close physical proximity to them.

In the example above, the police would have to prove that you knew that the baggie was under the rear seat of your vehicle, that it contained illicit drugs, and that you had some level of control over the drugs. If there were passengers in the back seat of the car, this would be a lot harder to prove. If you were the only person in the vehicle and there was some evidence that the baggie belonged to you (such as it being secured in a different bag with your personal items in it), then the state might be able to prove constructive possession.

There are many other examples that illustrate the distinction between constructive and actual possession:

• The drugs were in a purse or backpack that you were wearing: actual possession.
• The drugs were located in a common area of a house that you share with roommates: constructive possession
• The drugs were in your hand or your pocket: actual possession
• The drugs were in a bag inside the glove compartment that had a wallet with your ID in it: constructive possession
• The drugs were in a storage unit that you rented: constructive possession

The bottom line is that prosecutors don’t necessarily have to prove that you were physically holding drugs to charge you with and potentially convict you of drug possession in Arizona. It may be enough to show that you had some sort of control over the drugs. Whether you have been charged with actual or constructive possession of drugs, you should reach out to an Arizona drug crimes lawyer as soon as possible if you have been charged with drug possession.

Is It Possible to Beat a Constructive Possession of Drugs Charge?

Constructive possession cases are intensely fact-based. Unlike actual possession charges, where there isn’t really a question about whether or not you possessed the drug, it may be possible to argue that you never possessed an illegal drug. We will thoroughly examine every aspect of your case to come up with the best possible defense based on the facts and Arizona law.

As an initial matter, we may argue that the drugs weren’t illegal. In the Xanax example above, you might have had a prescription for the medication. While it might be preferable to store your medication in the prescription bottle, if you were legally prescribed the medicine, then that can defeat a drug possession charge.

There are also potential legal defenses to a drug possession charge (regardless of actual or constructive possession). For example, if the police illegally stopped you, searched you, or searched your vehicle or home, that could be enough to get the evidence suppressed and the charges dismissed. This is a constitutional issue, as Americans have the right to be free from warrantless searches and seizures. If the police did not have reasonable suspicion to stop you and either probable cause or a warrant to conduct a search, then the evidence could be thrown out of court.

There are also some defenses that are specific to constructive possession. Our Arizona drug crimes attorneys may argue:

• The drugs weren’t yours.
• You did not know that the drugs were there.
• You knew that the drugs were there, but did not know what it was.
• You didn’t have control over the item (physical proximity to the item is not enough to establish control).

For example, imagine that you are in college and share a house with several roommates. Unbeknownst to you, one of your roommates is dealing drugs on the side. Acting on a tip, the police get a warrant to search your house and discover a stash of drugs hidden on top of a ceiling panel in a hallway.

In this case, you might be charged with drug possession simply because you were the only one home when the warrant was executed and the drugs were in your house. Yet a skilled lawyer can argue that you had no idea that the drugs were even there, that the drugs weren’t yours, and that you had absolutely no control over the drugs. This may be sufficient to get the charges dismissed, particularly in a case where the police had evidence that your roommate was dealing drugs (not you).

Being charged with drug possession can be scary, as a conviction can result in jail time and other consequences. It is important to remember that being charged does not mean that you will be convicted. Our seasoned Arizona drug crimes lawyers are adept at arguing against constructive drug possession cases, using the facts of the case and our knowledge of Arizona law to get the charges reduced or dismissed.

Reach Out to Talk to an Experienced Arizona Drug Crimes Lawyer

A drug possession charge does not always mean that you were caught with drugs on your person in some way. Constructive possession of narcotic drugs can also lead to drug crime charges. Our law firm will help to protect your rights by proving that you never actually possessed the drugs.

Based in Tempe, Matthew Lopez Law represents clients throughout Arizona who have been charged with all types of offenses, including drug possession.  We work hard to help our clients get the best possible outcome, which may include a reduction or dismissal of the charges. To learn more or to schedule a free initial consultation with an Arizona drug crimes defense lawyer, give us a call at 480-608-9998 or fill out our online contact form. 

Related:

• Consequences of DUI Charges Against Foreign Citizens/Immigrants in Arizona
• DUI with a Child in the Vehicle: Laws, Penalties & Defenses