Can I Be Found Guilty by Association for a Drug Crime?

In Minnesota, a person can be charged with the crime of possession of a controlled substance; even if the substance is not actually on that individual.  Guilt by association, also known as “constructive possession,” allows the State to bring criminal charges against a person for drug possession even if that individual does not actually physically possess the drug.  We will try and explain the  difference between physical possession, constructive possession, and if individual can be guilty of constructive possession in Minnesota.


Physical possession is when a person has actual drugs on his or her body.  For example, if someone is arrested and drugs are found in their pocket, they can be charged with possession of a controlled substance. Because the drugs were found in the person’s pocket, it is clear that the drugs actually belonged to that person.


Constructive possession applies if the drugs are not actually in a person’s pocket or other part of his body.  In other words, if drugs are found in a person’s car or in the same vicinity of that person, the State could charge him with constructively possessing the drugs.


In order to prove that a person constructively possesses drugs, the State must prove two things.  1) It must prove that an individual had knowledge of the drug’s presence and 2) it must prove that that individual had the ability to maintain dominion or control the drugs.

Knowledge means that an individual readily knows that a drug is on or near his property.  Further, it means that an individual is aware of its incriminating nature.  In other words, a person must know that the drugs are present and that the drugs are illegally possessed.


The element of dominion is met if an individual has exclusive control over the area in which the drug is located, and others don’t share common access to the area.  For example, if three college students share a house but each has a private bedroom, drugs found in a bedroom would be constructively possessed by resident of the bedroom, not all three students. On the other hand, drugs found in a common areas could be constructively possessed by all three students. However, when more than one person has access to the area where drugs are located, the State must show that there is a strong probability that an individual had the ability to gain physical possession of the drug at the time of police interference before that person can be charged with a controlled substance offense.

Thus, merely being in close proximity to a drug is insufficient to prove constructive possession.  The State must show the individual had knowledge that an illegal drug is present and could maintain control on their property.  Constructive possession is often used by law enforcement when drugs are located inside “shared” areas, such as multi-tenant homes and automobiles.


If you are concerned about “guilt by association”:  Don’t let a friend put something under your car seat or in areas in which you exercise exclusive control.  If you know the drugs are there, it may not matter whether or not the substance actually belonged to you. You could be the one charged with a crime.

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