Constructive Possession

There were drugs in my car, but they weren’t mine. I didn’t even know they were there. Can they still charge me?!

constructive possession defense attorney

Police are trained to do many things during routine traffic stops, not the least of which is to be on the lookout for any evidence of drugs. During a traffic stop, police are free to look through car windows and see anything that happens to be in open sight. They can even run a drug sniffing dog around your car during a stop for something as simple as a broken tail light as long as the dog is nearby and it doesn’t extend or delay the length of the traffic stop. Often times, police will find drugs or paraphernalia somewhere inside the car, but not on or necessarily near any person in particular. Perhaps they find it in the glove box, a center console compartment, under a floor mat, or in a bag. If there is more than one person inside when the drugs are found, it’s not always clear who the drugs belong to and who should be charged.

When police find drugs, but it’s not clear who they belong to, they sometimes ask accusatory questions hoping somebody will make a statement showing they knew the drugs were there. They may threaten to charge everybody with possession unless somebody admits it belongs to them. This might convince somebody in the car to “take one for the team” and make an admission to save everybody else. It’s important to understand, however, that police cannot simply charge everybody in the car with possession if they can’t determine who the true owner is. Under Utah law, the mere fact that somebody is a co-occupant in a car is not enough to prove that they were in constructive possession of drugs or paraphernalia. Police must have something more than mere occupancy to establish a link between the drugs they found and the person they want to charge criminally. Utah courts refer to this as the “constructive possession.”

If you, or somebody you love, have been criminally charged with drug or paraphernalia possession in Utah, click here contact us and speak with an experienced criminal defense attorney who can help you today.


Requirements for Constructive Possession in Utah

In order to prove a legal connection between a defendant and contraband drugs or paraphernalia found in a vehicle, the police and prosecutor must be able to show the defendant had:

      1) the ability to exercise control over the contraband item, and

      2) also had the mental intent to exercise control over the contraband item.

Judges and juries look to a number of factors when considering whether the prosecution has enough evidence to prove a sufficient legal connection between the defendant and the contraband drugs for constructive possession. Some of these factors include how close the defendant was in relation to where the drugs were found, whether any other drugs or paraphernalia was in the defendant’s immediate possession, whether the defendant has any previous history showing drug use, who the vehicle belongs to, whether the drugs were found near any other items that belong to the defendant, information about any other occupants in the vehicle, and whether the defendant demonstrated any other incriminating conduct.

Closeness to Drugs or Paraphernalia

A judge or jury may consider how close the drugs or paraphernalia were in relation to where the defendant was sitting in the car. For example, a jury would be more likely to conclude that drugs found in the glove box belonged to the person sitting in the front passenger seat than they would for the person sitting in the rear passenger seat.

Other Items on Defendant

A judge or jury may look at whether any other items actually found on the defendant indicate a link between the defendant and the illegal items discovered. For example, if a baggie of marijuana is discovered under a seat in the car, a jury might more likely conclude that the defendant was in constructive possession if the police also found a marijuana pipe in the defendant’s pant pocket.

Defendant's History of Drug Use

A judge or jury or court may consider the defendant’s previous history of drug use, if any, including whether the defendant has any previous arrests or convictions for drug possession. For example, when a defendant has been previously convicted of cocaine possession, a jury is less likely to believe that the defendant thought the bag of white powder in the center console was just powdered sugar.

Ownership of the Car

A judge or jury may also consider who actually owns the car where the drugs were found. For example, a jury is more likely to conclude that the driver had constructive possession of the meth under the driver seat if the driver actually owns the truck, instead of having recently borrowed the truck from his uncle for a short period of time.   

Additional Items Belonging to the Defendant

A judge or jury may consider other items when they clearly belong to the defendant and are discovered alongside the illegal drugs or paraphernalia. For example, a judge is more likely to find that the defendant was in constructive possession of the illegal drugs if the drugs were found in a gym bag along with a gym membership tag in the defendant’s name, the defendant’s wallet, and the defendant’s photo ID.

Presence of Other People

A judge or jury may consider whether the police found other people in possession of drugs or paraphernalia besides the defendant.  For example, if the police find several pounds of marijuana in the trunk with a digital scale and pile of cash, a jury would be less likely to find the defendant in constructive possession with intent to distribute if the defendant only had a small drug pipe in her pocket while another passenger had a drug pipe, plus several hundred dollars in cash and a box of plastic baggies.

Other Incriminating Behavior

A judge or jury might also look to other evidence about the defendant’s behavior and whether it is consistent with possible drug possession. For example, a jury would be more likely to find the defendant in constructive possession of the mushrooms found in the center console if the begs the officer not to search the center console or tries to run away after getting out of the car.

Constructive Possession Outside of Vehicle

While this article highlights the doctrine of constructive possession in the context of traffic stops in vehicles, the same concepts apply in many other everyday situations. For example, constructive possession issues commonly arrive when drugs are discovered in an apartment shared between roommates or co-workers who share a common work space.


If you, or somebody that you love, have been charged with possession of illegal drugs or paraphernalia, please call or click here to speak with an attorney who is experienced in criminal defense attorney today.


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