Constructive Possession: Fighting Drug Charges When Drugs Aren’t On You

Thanks for visiting Spodek Law Group, a second-generation criminal defense firm managed by Todd Spodek, with over 50 years of combined experience defending constructive possession cases throughout New York. Police dont need to find drugs in your pocket to charge you with possession. They just need to find them somewhere they claim you controlled – your car, your apartment, even a friends house your visiting. That’s constructive possession, and prosecutors use it to charge everyone in a vehicle, everyone in an apartment, anyone with access to a location where drugs are found.

What Constructive Possession Actually Means

Actual possession is straightforward – drugs in your hand, your pocket, your mouth. Constructive possession is different. It means you had dominion and control over the area where drugs were found, plus knowledge they were there. Both elements are required. Prosecutors must prove you had the ability to use or dispose of the drugs AND that you knew about them. Miss either element, there’s no possession.

Dominion and Control

This means more than just being present. You need actual control over the location. Your apartment? You have dominion and control. A friends basement your visiting for the first time? Probably not. The distinction matters because prosecutors try to stretch constructive possession to cover anyone near drugs. I’ve seen cases where police find drugs in a shared living room and charge everyone in the apartment. That’s overreach. Being present doesn’t equal control.

Knowledge

You must have known the drugs were there. Police find cocaine hidden in the trunk of a car you borrowed yesterday? Hard to prove you knew about it. Drugs sitting on your kitchen table? Much easier for them to establish knowledge. Knowledge usually gets proven through circumstantial evidence – proximity to the drugs, whether they were in plain view, statements you made, forensic evidence linking you to them.

Why Prosecutors Charge Multiple People

Because it lets them charge multiple people from one drug seizure. Police find drugs in a car with three occupants? All three get charged with constructive possession. Apartment with four roommates? Everyone gets charged. It’s a numbers game. The burden sits with prosecutors to prove each person individually had dominion/control and knowledge. But they charge everyone first, then try to prove it later. Most people take plea deals rather than fight.

Common Scenarios

Vehicle Cases

You’re riding in someone else’s car. Police search it and find drugs under the passenger seat. Prosecutors charge you with constructive possession even though you don’t own the car, didn’t know about the drugs, and had no control over what was under the seat. New York has a vehicle presumption statute – PL § 220.25 – that makes this worse. When drugs are found in a vehicle, all occupants are presumed to knowingly possess them. You have to rebut that presumption.

Shared Apartments

Three roommates share an apartment. Police execute a search warrant and find heroin in a common area closet. All three roommates get charged. But which one actually possessed the drugs? Prosecutors must prove each roommate individually had knowledge and control. If the drugs were in a locked bedroom only one roommate accessed, that’s different. But common areas create reasonable doubt about who possessed what.

Visiting Someone’s Home

You’re visiting a friend. Police show up, search the place, find drugs in the kitchen. They arrest everyone present including you. But you dont live there. You have no control over that kitchen. You didn’t know your friend kept drugs there. That’s a weak constructive possession case, but you still get arrested and charged. Now you’re fighting it in court.

Workplace Lockers or Storage

Police search your workplace and find drugs in a shared storage area or locker room. Multiple employees have access. Prosecutors charge you because you work there. But can they prove you specifically had dominion and control over that storage area? Can they prove you knew drugs were there?

The Knowledge Problem

This is often the weakest link in the prosecutors case. They have to prove you knew about the drugs beyond reasonable doubt. If drugs were hidden, how could you have known? If you just arrived at the location, how would you know what was there? If multiple people had access, why assume YOU knew versus someone else? Lack of physical evidence connecting you to the drugs supports lack of knowledge. No fingerprints on the packaging? No DNA? No texts or communications referencing drugs? That undermines their knowledge argument.

Challenge Dominion and Control

Did you really have control over that area? A car you were a passenger in for 10 minutes? An apartment you were visiting? A storage unit you share with three other people? Prosecutors need to show you had the ability to use or dispose of the drugs. If you couldn’t access the location where drugs were found – locked glove compartment, someone else’s bedroom, basement storage you didnt have keys to – you didn’t have dominion and control.

Multiple People With Access

The more people who had access to the location, the stronger your defense. Three roommates with keys to the apartment? Four employees with access to the storage room? Five people who drove that car in the past week? Prosecutors must prove YOU possessed the drugs. Multiple people with access creates reasonable doubt. Maybe one of the other people left the drugs there. Maybe one of them knew about it and you didnt.

Timing Matters

How long did you have access to the location? If you borrowed a car two hours ago and police find drugs in the trunk, that timing helps you. The drugs could have been there for days or weeks before you ever touched the vehicle. Recently moved into an apartment? Drugs hidden in the walls or crawl spaces could be from previous tenants. The shorter your period of access, the harder it is for prosecutors to prove you knew about drugs that might have been there long before you arrived.

What We Do

Constructive possession charges often lack probable cause for YOUR arrest specifically. Police found drugs in a location, so they arrested everyone present. But presence alone doesn’t equal possession. We file motions challenging whether prosecutors have enough evidence to charge you individually. We demand records showing every person with access to the location – everyone with apartment keys, who drove the vehicle recently, employees with storage access. The more people with access, the more reasonable doubt. We demand full forensic reports. If police didn’t test for fingerprints or DNA, we argue that failure undermines the entire case.

Constructive possession cases often stem from illegal searches. Police searched a car without probable cause? Entered an apartment without a warrant? That evidence gets suppressed, and without the drugs, there’s no possession case. At trial, we attack both elements – dominion/control AND knowledge. Cross-examination focuses on alternative explanations for how drugs ended up where police found them, other people who had better access and control, lack of evidence showing you knew anything about drugs being present.

At Spodek Law Group, we’ve beaten countless constructive possession cases by holding prosecutors to their burden. You can reach us 24/7 at our offices throughout NYC and Long Island. When prosecutors cant prove you controlled or knew about drugs, they cant prove possession.