Constructive Possession – a potential defense to drug possession charges in Indiana

A conviction for drug possession may rest upon proof of either actual or constructive possession. Actual possession occurs when a person has direct physical control over the item. The drugs being in your pocket, purse, or even hand are good examples of actual possession. The State will argue that they know you possessed the drug because you were found with it.

Constructive possession is more complicated. A defendant is in the constructive possession when the defendant has both (i) the intent to maintain dominion and control over the drugs and (ii) the capability to maintain dominion and control over the drugs.

The capability prong is satisfied when the State shows “proof of a possessory interest” regardless of whether possession of the premises is exclusive or not. Think about a common room or roommate situation.

Intent is a much greater hurdle for the State when possession of the premises is not exclusive and requires a showing of “additional circumstances.”

These additional circumstances can include:

(1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant’s plain view, and (6) the mingling of the contraband with other items owned by the defendant.

If the State is proceeding under a theory of constructive possession and does not have any of the aforementioned additional circumstances, they cannot prove their charge beyond a reasonable doubt.

This could result in a complete dismissal of your charges!

Call Rebecca Gray today for a free consultation if you believe your drug possession charge is one of constructive possession. Contacting an attorney at the outset of your case is imperative in constructive possession cases. She will be able to review your case and hold the state to their burden.