Is there a way to possess something if it is not in your hand, in your pocket, or somewhere else on your person? Definitely. That is the basis of the concept of “constructive” possession.
Say that you have a backpack, and you walk into a store. If you put that backpack down on the floor and walk down the store aisle a few steps to grab an item on a shelf. You are not giving up possession of that backpack. Legally speaking, you still have possession of the backpack. It is nearby, but you do not have it on your person at that given moment. In other words, you “constructively” possess the backpack. As another example, if you own a car, you possess that car. Even if you park your car to go shopping, you have the keys to that car, and thus, are always in “constructive” possession of it.
You see, the key to constructive possession is that you are able to exercise control over something, even if it is not in your hand or in your pocket.
That concept applies to the possession of drugs. Under Ohio law, possession is defined in ORC 2925.01(K) as:
“Possess” or “possession” means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.
As you can see from that definition, there must some element of knowledge that the drugs are present. Accordingly, if a person is in your car and they have some cocaine in their pocket, but you don’t know about it, then you are not constructively possessing that cocaine. Stated another way, just because drugs are in your car, house, apartment, etc. does not necessarily mean that you possess those drugs.
However, if a person takes cocaine out of his pocket and puts it right next to you, the government will argue that you knew about it, you had access to it, it was ready at hand, and you exerted control over it. Would the government’s argument carry the day? Maybe, maybe not.
The concept of constructive possession is important in drug cases because drug dealers try to avoid a possession charge by trying to put distance between themselves and the actual drugs. Indeed, there are situations in which a drug dealer might never have drugs on his or her person but rather uses runners to get the drugs to customers. Without constructive possession as a way to convict these dealers, prosecution would be difficult. With constructive possession, the government can argue that the dealers have control over the drugs even if they are not physically touching the drugs.
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