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Understanding constructive possession

If you face drug charges in Kentucky, your freedom could be at stake. Depending on the type of drug that law enforcement officers allege you possessed at the time they arrested you, the amount you allegedly possessed, and your alleged intent in possessing it, you could face substantial prison time and/or a substantial fine if the prosecutor convicts you.

Naturally, to convict you, the prosecutor must convince a jury beyond a reasonable doubt that the drugs the officers recovered actually belonged to you. If the officers found them in one of your pockets, for example, the jury will believe that they were your drugs since you had actual possession of them. If, however, the officers found them somewhere in your home or car, and other people had access to these places, the prosecutor’s job becomes much harder.

Constructive possession

There is a legal doctrine known as constructive possession that allows a prosecutor to convict you of drug possession if they can establish that you controlled the drugs even though you did not actually possess them. They prove this – or not – by the circumstantial evidence of your particular case.

Circumstantial evidence is evidence, often provided by the testimony of a witness, that allows the jury to infer your guilt. For instance, if the officer testifies that they found the drugs in the locked console of your car, the jury could infer that you at least controlled, if not owned, the drugs since you controlled your locked console. This inference depends, of course, on whether or not the jury believes that the officer’s testimony is credible.

If, on the other hand, the officer testifies that they found the drugs in your car’s unlocked console or hidden underneath or between your car’s seats, the jury cannot infer beyond a reasonable doubt that you owned or controlled them. Someone else could have placed them there without your knowledge. This is especially true if you had passengers in your car at the time the officer(s) found the drugs. Under these circumstances, the jury must acquit you.

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