What is constructive possession?

If you face New York illegal drug possession charges, you need to know about constructive possession, both what it is and how it works. FindLaw explains that constructive possession constitutes one of the ways in which the prosecutor can prove that you owned, controlled or otherwise possessed the illegal drugs that officers recovered from the scene.

If you actually possessed the drugs, the prosecutor can prove this easily via an officer’s credible testimony that (s)he recovered the drugs from your pocket or somewhere else on your person. The prosecutor may have a considerably more difficult time proving you possessed the drugs, however, if (s)he must prove it by means of constructive possession. Why? Because constructive possession relies on the jury reasonably inferring that you possessed the drugs based on only circumstantial evidence.


Suppose that the officer who recovered the drugs testifies as follows:

  • That (s)he pulled your car over for an alleged traffic violation
  • That your car’s registration proved that you owned the car and the other two people in it were only passengers
  • That when (s)he asked you if (s)he could search your vehicle, you said (s)he could
  • That during this legal search (s)he asked you for the key to your car’s locked console and you gave it to him or her
  • That she found the drugs hidden in the console

Under circumstances such as these, the jury has no problem reasonably inferring that the drugs belonged to you because you controlled their hiding place via your key to the locked console.

Now change only one of the above circumstances. Instead of finding the illegal drugs in your locked console, the officer finds them in your unlocked console. Now whose drugs are they? The jury cannot make any reasonable inferences. After all, all three of you in the car had equal access and equal opportunity to hide the drugs in your unlocked console. Consequently, they could belong to any of the three of you.

The jury must acquit you, assuming your case ever actually goes to trial. The greater likelihood is that the prosecutor will dismiss all charges against you should your attorney point out to him or her that under these circumstances, (s)he cannot prove that you constructively possessed the drugs. This is general educational information and not intended to provide legal advice.

Contact Neil S. Ruskin

Bold labels are required.

Please enter your name.
Please enter a valid email.
Please enter a valid phone number.
Please enter a message.
Please check this field.

Office Location

Neil S. Ruskin
188 Montague Street Suite 900
Brooklyn, NY 11201

Local: (718) 237-1547
Fax: 718-875-4011