What is constructive possession of drugs in SC?
You may be surprised to learn that you can be charged with drug possession in SC even if you did not possess the drugs. You could be charged with drug possession even if someone else claims the drugs and says they were not yours…
How does that work? Although you may have heard the officer say, “it’s constructive possession,” or something like, “the hand of one is the hand of all,” odds are it still doesn’t make sense to you.
Below, we’ll talk about what constructive possession means, how “mere presence” cannot be the basis for a drug conviction, and why “the hand of one is the hand of all” doesn’t necessarily apply in constructive possession cases.
What Does Constructive Possession Mean in SC?
Any time you see the word “constructive” in the law, it means “fake.” The courts (or legislature) have created what is called a “legal fiction” to accomplish their goal.
For example, constructive possession of drugs means that you are not actually in possession of the drugs, but the State can still convict you of possessing them.
Actual possession is an easier case for the State to prove – for example, if the drugs were in your pocket, sitting in your lap, or you are holding them in your hand when the cops walk up to you.
Constructive possession is when the drugs are not actually in your possession – for example, they were found on the ground nearby, close to you in a vehicle, or in your home.
The State must prove 1) that you had “the right to exercise dominion and control” of the area where the drugs were found, and 2) that you knew the drugs were there.
Dominion and Control
How can the State prove that you had the right to exercise dominion and control over the drugs?
- The drugs were in your “grab area” – they were found so close to you that you could have easily picked them up,
- The drugs were found in your home or a residence that you had control over,
- Even if they weren’t in your “grab area,” the drugs were found in a vehicle that belongs to you or that you were driving,
- The drugs were found on the ground nearby or in a location where you could have easily tossed them as the police rolled up on you, or
- Your co-defendants or another witness for the State testify that they were your drugs or that you had the right to “control their disposition.”
Even if the State can prove that you had dominion and control over the area that the drugs were found, they must still prove that you knew the drugs were there.
Imagine you are driving down the road with some friends, you see blue lights, and you pull over. The officer says he smells marijuana (he must be lying, and you know that there is no marijuana in your car), asks everyone to step out of the vehicle, and begins searching.
Aha! He says as he pulls a bag of marijuana from under the back seat. The back seat where one of your friends was sitting…
It’s your car, you’re driving it, and you have “dominion and control” over the area where the drugs were found. But you aren’t guilty of constructive possession, because you didn’t know the drugs were there.
Your friend, on the other hand, had dominion and control over his “grab area” where the drugs were found, and a jury could easily infer that he not only knew the drugs were there but that he probably hid them there when he saw the blue lights.
Constructive Possession: When the Hand of One is Not the Hand of All
Police will often say to a suspect, “well, the hand of one is the hand of all, you know.” Except, in many cases, the officer doesn’t really know what “the hand of one is the hand of all” means.
“The hand of one is the hand of all” refers to “accomplice liability” – if you are present when a crime is committed and you participate in that crime, whether you are an active participant or just a lookout, you can be convicted under a theory of accomplice liability. For example, if your friend goes into a home to commit burglary while you stay outside to keep watch, you can also be convicted of burglary.
That’s not the same as constructive possession, and mere presence at the scene of a crime – or mere presence at a location where drugs are found – is never enough to convict a person.
In State v. Heath, the SC Supreme Court held that a directed verdict should have been granted where the Defendant lived at a residence where drugs were found, but he did not have dominion and control over the property because it was owned by his mother.
Although the drugs were found in a car-washing mitt near the back door of the home, and the defendant was washing his car when the police arrived, there was insufficient evidence to prove dominion and control over the area where the drugs were found.
In State v. Brown, the SC Supreme Court found that a directed verdict was proper where the defendant was a passenger in a car and eight pounds of marijuana were found on the rear floorboard of the car:
The sum total of the State’s evidence against Brown is that he was a passenger in a car on a deserted rural road about 1:00 AM, that [the driver] had an undetermined sum of cash in a large roll, that Brown was nervous and had no identification, that there was a smell of marijuana in the car, and that there was a large opaque bag containing eight pounds of marijuana on the rear floorboard. [The driver] knew Brown’s name . . . and Brown told [the driver] to be quiet when [the driver] started to admit the crime.
And, in State v. Ellis, the SC Supreme Court held that a directed verdict should have been granted where the defendant lived in an apartment where heroin was sold and may have been present at the time of the heroin sales, but there was no evidence presented that she participated in the heroin sales or that she had knowledge of the heroin.
Criminal Defense Lawyer in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms, including drug crimes like drug possession, possession with intent to distribute, drug distribution, and drug trafficking.