Constructive possession is a “legal fiction” that allows the state to convict a person of drug “possession” when they did not actually “possess” the drugs… 

How does that work? 

Below, we will explain how constructive possession works in South Carolina, including:

• The definition of constructive possession in SC, 
• The types of drug offenses that can be proven through constructive possession, and
• The potential defenses to drug charges based on constructive possession. 

What is Constructive Possession? 

If a police officer finds illegal drugs in your pocket, in your hand, or somewhere on your person, that’s drug possession. It’s actual drug possession – it will be hard to argue that you did not possess the drugs if you were found holding them in your hand, right? 

Constructive possession is what the state must argue if the drugs are found nearby – not actually in your possession, but you are still responsible for them. To get a conviction based on constructive possession, the state must prove:

1. Dominion and control: the state must prove that you controlled the area where the drugs were found, or that you had the ability to control the disposition of the drugs. If the drugs were in your “grab area,” near enough that you could reach out and grab them, that might be enough, or it may be enough to show that you owned the vehicle, house, or room where the drugs were found, and
2. Knowledge: the state must also prove that you knew about the drugs. If the police find drugs in Joe’s pocket or under the couch cushion Joe was sitting on in your house, that’s not enough to convict you of possession unless you knew that the drugs were there and you had the ability to control their disposition. 

Constructive possession can be the basis for a conviction in any drug case where the charges are based on possession – including simple possession charges, PWID (possession with intent to distribute) charges, and drug trafficking charges. 

Simple Possession 

Constructive possession is often the basis for simple possession charges – of any type of controlled substance including marijuana, cocaine, heroin, or other illegal drugs. 

If less than an ounce of marijuana is found in your dresser drawer in your bedroom, you may be charged with constructive possession of marijuana, for example, or if one-half a gram of cocaine is found in the trunk of a car that you are driving, you may be charged with constructive possession of cocaine. 

Possession with Intent to Distribute

When police say they have found more than the threshold weight (one ounce for marijuana, for example, or more than one gram for cocaine or meth), there is an inference that the person intended to distribute the drugs, and the person is charged with the more serious offense of PWID (possession with intent to distribute). 

The charges can still be based on constructive possession, however – the only differences between possession and PWID are 1) the threshold weight creates an inference of intent to distribute, and 2) the prosecutor must prove the intent to distribute at trial. 

Trafficking 

Drug trafficking charges in SC are usually (but not always) based on possession. If the defendant possesses more than the threshold weight (more than one pound of marijuana, for example), they are charged with the more serious offense of drug trafficking. 

As with PWID, the possession element of drug trafficking can be proven by showing constructive possession – 1) dominion and control and 2) knowledge. 

Defenses to Constructive Possession 

How do you defend against constructive possession charges? 

The obvious defense is based on the elements that the state must prove – if you did not have the ability to control the disposition of the drugs (dominion and control), you are not guilty. Even if the state proves dominion and control (the drugs were in your home or your vehicle, for example), if they do not prove that you knew the drugs were there, you are not guilty. 

At trial, the court will give a jury instruction on constructive possession and the elements that the state must prove, and, if the defense requests it, the court may also give jury instructions on “mere presence” and “mere association.” 

Mere Presence

“Mere presence” at the scene of a crime is never enough to convict a person. 

If a person is 1) present at the scene of a crime, 2) knows the crime is happening, and 3) participates in the crime in some way, they can be found guilty of “accomplice liability.” This is close enough to constructive possession that it should be a part of the jury instructions in any constructive possession trial – if you did not have dominion and control over the drugs, or if you did not know the drugs were there, you were “merely present” and you are not guilty of possession. 

Mere Association 

Similar to “mere presence,” “mere association” is never enough to convict a person of a crime. 

Police will often say to people, “the hand of one is the hand of all,” and “you’re all getting charged unless someone ‘fesses up.” It’s not true, though – this is just a way for the cop to get someone to confess and make their job easier. 

The hand of one is not the hand of all, and there is no accomplice liability unless the state can prove 1) you were present at the scene of the crime, 2) you knew the crime was happening, and 3) you participated in the crime somehow. 

Similarly, if a person you are with possesses drugs, that does not mean that you are guilty of possession unless the state can prove 1) dominion and control and 2) knowledge. 

Criminal Defense Lawyers in Myrtle Beach, SC

If you have been charged with constructive possession in SC – simple possession, possession with intent to distribute, or drug trafficking, call the Myrtle Beach drug defense attorneys at Coastal Law now at (843) 488-5000 or fill out our online form to set up a free consultation about your case. 

​