No matter what kind of drug charges you may ever face in North Carolina, in order to convict you of any of them, the prosecutor must first establish that you possessed, or at least owned or controlled, the drugs on which your drug charges are based. There are two ways a prosecutor may go about proving that the drugs in question are yours: by actual possession or by constructive possession.

Proving by actual possession that you owned the drugs gives the prosecutor a fairly easy job. All the jury needs to hear is a law enforcement officer credibly testifying that the drugs came from your jacket pocket, pants pocket or elsewhere on your person. A prosecutor faces a bigger challenge, however, when required to prove by constructive possession that you owned the drugs. Since constructive possession relies on circumstantial evidence, the circumstances around the recovery of the drugs must be strong enough that the jury reasonably infers they are yours.

Examples

The doctrine of constructive possession becomes easier to understand when you consider two circumstantial evidence examples. In the first example, an officer may testify to pulling you over for an alleged traffic violation and determining that you owned the car and there were three passengers riding with you. You may have given the officer permission to search your car when asked, and you may have even voluntarily handed over the key to locked glove box, where the officer found illegal drugs. Based on this circumstantial evidence, the jury may have no problem reasonably inferring that you owned the hidden drugs because only you possessed the key to their hiding place.

In the second example, assume all the same facts except for one extremely crucial difference. In this example, the officer found the illegal drugs when opening your unlocked glove box as part of his or her legal search of your car. Based on this circumstantial evidence, the jury cannot come to any determination, reasonable or otherwise, as to which of the four occupants in your car owned the drugs, you or one of your passengers. Since all four of you had equal opportunity to place the drugs in your unlocked glove box, no one can ever know for certain who owned them unless one of you confesses. In any event, the jury must acquit you of whatever drug charge you face because there is no way to tell whether you possessed, owned or controlled the drugs in question.