Actual Possession vs. Constructive Possession
Actual possession occurs when a law enforcement officer finds drugs on your person, for instance, in a shirt pocket. Whether you own the drug is not relevant for the purposes of this charge. For example, if you borrowed a coat from a friend who had a controlled substance such as cannabis in his or her pocket, the fact that it is not yours is not a defense to possession charges. The best way to challenge an actual possession charge is to question the stop and search that resulted in the police finding drugs on your person. A law enforcement officer must have reasonable suspicion that you are about to commit, or have committed, a crime in order to lawfully stop you. This has to be more than a hunch. Once the officer has reasonable suspicion to stop you, he or she must have probable cause to conduct a search. If he or she does not have probable cause to conduct a search, then the charges can be dismissed.
Constructive possession occurs when you are facing possession charges for drugs that were not on your person, but located in another place or common area. The prosecutor must prove that you knew the drugs were in that specific location and you had the ability to exercise control over them. You may be charged with constructive possession if you were a passenger in a vehicle where drugs were found in the glove compartment or trunk. A charge of constructive possession can be challenged by questioning the stop and search, as with an actual possession charge. It can also be challenged that the prosecutor did not establish all of the necessary elements of constructive possession beyond a reasonable doubt.
