Constructive possession is an important concept in South Carolina drug cases. It allows the State to charge a person with possessing an item that was not on that person’s body.
Possession is not the same thing as ownership, and it does not always require holding an item. South Carolina courts have said that a possession conviction requires proof of possession, either actual or constructive, together with knowledge that the item was present (State v. Muhammed, S.C. Court of Appeals Opinion No. 3076, citing State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981)). The State must prove every element of a crime beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)), so it must prove both control and knowledge.
That can be difficult when nothing is found on the person. Courts have said that constructive possession can be shown by circumstantial evidence as well as direct evidence, and that possession can be shared (State v. Muhammed).
If you are facing charges that involve constructive possession, talk with a Greenville drug defense attorney at Touma Law Group. Call us at (864) 618-2323 to get started.
What is Constructive Possession?
Constructive possession is a legal concept that allows a person to be charged with possessing an item even when it is not on the person. A person has constructive possession when the State proves two things. First, that the person had the right and power to control the disposition or use of the drugs. Second, that the person knew of the drugs and intended to control them. Control over the property where the drugs were found does not by itself equal constructive possession (State v. Stewart, Opinion No. 28029 (S.C. 2021)). Earlier cases describe the control element as dominion and control, or the right to exercise it (State v. Muhammed). South Carolina courts apply the same principles to firearms and other objects (State v. Jennings, S.C. Court of Appeals Opinion No. 2964, discussing State v. Halyard, 274 S.C. 397, 264 S.E.2d 841 (1980)).
In drug cases, South Carolina law makes it unlawful to knowingly or intentionally possess a controlled substance unless it was obtained from a practitioner under a valid prescription or order (S.C. Code Ann. § 44-53-370(c)). The trafficking statute reaches a person who is “knowingly in actual or constructive possession” of certain quantities of specific drugs (S.C. Code Ann. § 44-53-370(e)).
If someone is convicted of drug possession, the penalties depend on the drug, the amount, and whether the person has prior offenses. They can include jail time and fines (S.C. Code Ann. § 44-53-370(d)). If you are charged with constructive possession, it is important to talk with a drug charge defense attorney about the evidence in your case.
Examples of Constructive Possession
Constructive possession cases are based on the idea that a person had control over an item and knew it was there, even without holding it. Traffic stops and home searches are common examples.
- When police stop a vehicle and search it, they may find drugs in places such as the floorboard, glove compartment, or trunk. The State may then argue that the driver or a passenger had control of that area.
- To convict someone of possession or of possession with intent or trafficking offenses, the State must prove that the person had dominion and control over the drugs, or the right to exercise it, and knew the drugs were there. Possession requires more than mere presence (State v. Muhammed).
- The same principles apply when police search a residence. Evidence that the accused controlled the property where the drugs were found can be enough to send a case to the jury, but it does not decide the case, because the State must still prove that the accused knew about the drugs and intended to control them. In 2021 the South Carolina Supreme Court held that a trial court should no longer instruct a jury that it may infer knowledge or possession from drugs found on property under the defendant’s control, although lawyers may still argue that inference to the jury (State v. Stewart, Opinion No. 28029 (S.C. 2021)). Possession can also be shared by more than one person (State v. Muhammed).
Actual Possession vs Constructive Possession
Actual possession and constructive possession are two ways the State can show possession in South Carolina. Actual possession is when drugs are in the physical custody of the person charged. Constructive possession is when the person does not have physical custody, but the State proves the person had the right and power to control the drugs, knew about them, and intended to control them (State v. Stewart, Opinion No. 28029 (S.C. 2021)).
In either case, the State must also show that the person knew the item was there. Because a constructive possession theory can support a drug charge, the penalties can be serious. It is important to talk with a drug lawyer if you are facing charges that involve constructive possession.
Can My Co-Defendant “Take Credit” or “Claim” the Drugs?
South Carolina courts have said that possession may be shared (State v. Muhammed). That means more than one person can be found to have constructive possession of the same drugs, even if only one of them touched them.
A co-defendant may say the drugs belong to them. That statement does not automatically end the case against you. Whether it helps depends on the evidence, including who had dominion and control over the drugs or the place where they were found, and whether the State can prove you knew the drugs were there.
Do I Need a Lawyer for Help with Constructive Possession Charges?
Constructive possession is most often discussed in drug cases, but South Carolina courts apply the same principles to firearms and other objects (State v. Jennings). It matters because a person can be charged even when nothing was found on the person’s body.
If you are accused of constructive possession, speak with a criminal defense lawyer promptly. A lawyer can review the evidence, including who had access to the place where the item was found and what proof exists that you knew about it, and explain your options.
If you are charged with constructive possession, Touma Law Group can help. Our Greenville defense attorneys can review the charges against you and explain the options available in your case. Contact Touma Law Group today for a consultation.
