What does possession of drugs mean in South Carolina? Possession is one of the key elements in most drug-related crimes. Possession means more than simply having drugs such as marijuana in your possession. You must have knowing possession.
There are two types of possession recognized in South Carolina:
- Actual possession; and
- Constructive possession.
What is Actual Possession?
Actual possession occurs when you have actual physical custody of marijuana on your person such as in your pocket, purse, wallet, etc.
Constructive Possession – That’s not mine!
Constructive possession is a little trickier than actual possession. Constructive possession of drugs occurs even though you do not have physical custody of the drugs but you have both:
- “Knowledge” of the drugs presence and;
- “Dominion and control” or the right to have dominion and control over the marijuana.
What Knowledge is required?
A person’s knowledge may be inferred if the drugs are found on the property that is under the control of the defendant. State v. Adams. However, this is not automatic. Whether the evidence is sufficient to withstand a directed verdict motion when the State relies upon circumstantial evidence of constructive possession is a fact intensive determination.
State v. Brownlee, the police found a gun and cocaine in the defendant owner’s vehicle. The court addressed what knowledge is required and stated:
[P]ossession requires that a person be in actual or constructive possession of the controlled substance with actual knowledge of its presence…. Constructive possession of a controlled substance exists when a person although not in actual physical possession of the controlled substance exercises dominion and control over the substance or has the right to exercise dominion and control over the substance. A person has possession of a controlled substance within the meaning of this law when he has both the power and the intent to control its disposition or use. So, under this offense it must be shown that the defendant had possession of the controlled substance and that the defendant knew he had the controlled substance in his possession. Knowledge of the presence of the controlled substance by the defendant is an essential element of possession.
However, if someone is living is a house where they do not have an ownership interest, like a renter or child of a parent, then this may not meet the requirement for constructive possession because the person merely has a right of access and not necessarily dominion and control over the property. State v. Heath
What is Dominion and Control?
Constructive possession requires that you have power over the drug. Dominion and control means that you either have power over either the drug or the premises upon which the drugs are found. State v. Heath This can be established by circumstantial or direct evidence. There is no bright line rule, so each case requires a detailed review of the facts surrounding the issue.
Are drugs in my house or car enough to prove constructive possession?
It depends. Remember, close proximity to a controlled substance is never enough to prove constructive possession, you must show knowledge coupled with dominion and control.
In State v. Brown, the defendant was a passenger in the front seat of the car where marijuana was found. In finding the State’s evidence insufficient to create a jury issue on constructive possession, the Court stated: Brown did not own the car, there was no special relationship between, with the driver or owner of the car from which control of the car or its contents might be inferred.
Exclusive Occupancy
If you are the sole occupant of the home or car where a controlled substance is found, your exclusive occupancy will depend on the ownership status of the car or residence. If you own the car or residence then many times you will have constructive possession because you have the right to control the area where the drugs are found.
Non-Exclusive Occupancy
If you are not the sole occupant of the home or car, possession is slightly more difficult to prove. Where there is more than one occupant, there must be additional evidence, such as incriminating facts or circumstances that shows both knowledge and control.
In State v. Brown, the defendant was a passenger in the front seat of the car where marijuana was found. In finding the State’s evidence insufficient to create a jury issue on constructive possession, the Court stated: Brown did not own the car, there was no special relationship between, with the driver or owner of the car from which control of the car or its contents might be inferred.
In State v. Tabory, the defendant was a passenger in a U-haul truck, where twenty-six hundred pounds of marijuana were found. The Court noted that while defendant’s presence in the truck alone might not support a finding of constructive possession, his presence coupled with incriminating testimony of the State’s witness, made a clear jury issue on constructive possession.
Possession can be sole or joint
Constructive possession can be sole or joint, meaning either an individual or a more than one person can have possession over the drugs. An example would be where police find one bag of marijuana in the kitchen of a house owned by two people, both can be liable under constructive possession.
Mere Presence
Mere presence of a person in an area where drugs are found is not enough in and of itself to give rise to the necessary inference. Proof of possession requires more than proof of mere presence at the place where the drugs are found.
Mere presence is insufficient to prove constructive possession. State v. Tabory. We recognize that proof of possession requires more than proof of mere presence, and that the State must show defendant had dominion and control over the thing allegedly possessed or had the right to exercise dominion and control over it.
State v. Brownlee, The purpose of a mere presence charge in a drug case is to inform the jury that any inference which is permissibly drawn from the presence of the defendant at the location where drugs are found is, as a matter of law, insufficient by itself to convict a defendant of the possession or possession with the intent to distribute drugs. In other words, the law does not allow a jury to conclude guilt beyond a reasonable doubt based solely upon the inferences drawn from presence in the proximity of drugs. It is possible for the jury to infer knowledge of the drugs and the intent to exercise dominion and control over them from the mere presence. The law does not condemn this inference. However, the law will not allow that inference, without more, to prove possession beyond a reasonable doubt
Criminal Defense Attorney Charleston, SC
If you have been charged with possession of marijuana, cocaine or even a felony and have a possession issue in your case call an experienced and trusted criminal defense lawyer Charleston, SC at the Dale Savage Law Firm today for a free case consultation (843) 530-7813.