In Minnesota, a person can be charged with the crime of possession of a controlled substance even if the substance is not located on his or her person. Guilty by association, also known as “constructive possession,” allows the State to bring criminal charges against an individual for drug possession even if that individual does not actually physically possess the drug. The difference between physical possession and constructive possession, as well as whether an individual can be found guilty of constructive possession of a drug is discussed below.
Difference Between Physical Possession and Constructive Possession
Physical possession exists when a person has actual drugs on his body. For example, if a person is arrested and the police find drugs in his pocket, they can be properly charged with possession of a controlled substance. Because the drugs were found in his pocket, it is evident that the drugs belonged to this person. Unless he can show that the police improperly searched him or infringed upon his constitutional rights, he will likely be convicted of a crime.
On the other hand, 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.
Requirements to Prove Constructive Possession
In order to prove that an individual constructively possesses drugs, the State must prove two things. First, it must prove that an individual had knowledge of the drug’s presence. Second, 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 or control is met if an individual has exclusive control over the area in which the drug is located, and other people 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 area 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. Always remember that the State must be able to show that individual had knowledge that an illegal drug is present on his property, and that he could maintain dominion or control of the drug. Constructive possession is often used by law enforcement when drugs are located inside “shared” areas, such as multi-tenant homes and automobiles.
The long and short of constructive possession and if your concerned about “guilty 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.