Minnesota Criminal Defense: What is Constructive Possession in a Drug Charge Case?

Drug possession is a serious criminal offense under both state and felony law. Depending on the nature and the quantity of the controlled substance, drug possession could be charged as a felony that carries significant jail time. Notably, there are two separate types of possession: actual possession and constructive possession.

With constructive possession, you can be arrested and charged with drug possession even if you are not found with drugs physically on your person. Here, our Mankato drug crimes defense lawyer explains the key things to know about constructive possession charges in Minnesota.


Actual possession refers to physical possession of a banned substance. It occurs when a person is discovered with illegal drugs in their hands, in their pockets, or otherwise on their person. In contrast, constructive possession is a legal fiction: It allows prosecutors to charge an individual with possession of drugs that they know about and control. There are two required elements that police and prosecutors must satisfy to obtain a criminal conviction in a constructive possession case:

  • Knowledge: Constructive possession always requires knowledge. Prosecutors must prove beyond a reasonable doubt that the defendant actually knew about the illegal drugs that they are accused of “possessing.”
  • Dominion and Control: Knowledge is not enough to prove drug possession. You are not guilty of possession simply because you know about someone else’s illegal drugs. Prosecutions must also prove that a defendant had dominion and control over the banned substance.

In general, constructive possession charges are filed when drugs are discovered within a person’s property. For example, if drugs were found in the glove box of your vehicle, police may arrest you on the grounds of constructive possession. Likewise, if banned substances are found in your home or apartment, you could face constructive possession charges.


Defendants are entitled to some important legal protections in constructive possession cases. Recently, the Minnesota Supreme Court ordered a new trial for a defendant convicted of drug possession on the grounds that the jury was given an “overly broad” definition of constructive possession. In the case of State v. Hunter, the jury was read a definition of constructive possession that states that the defendant must have “dominion and control” over the place where illegal drugs were found. The Minnesota Supreme Court ordered a new trial because that is an inaccurate explanation of the standard. Constructive possession requires dominion and control over the actual banned substance.


At Kohlmeyer Hagen, Law Office Chtd., our Mankato criminal defense lawyer has the professional experience and legal expertise to handle the full range of drug possession charges. If you or your loved one was arrested for constructive possession, we are here to help. Call us now or use our online contact form for a fully confidential consultation. Working out of offices in Mankato and Rochester, our drug possession defense attorneys represent clients throughout Southern Minnesota.

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