If you face any type of drug charges in Colorado, a conviction could put you in prison for a number of years. You may also have to pay a substantial fine. Naturally the conviction penalties depend on which kind of drug law enforcement officers allege you possessed when they arrested you and the quantity thereof.

No matter what specific drug charges you face, in order for the prosecutor to prove your guilt, (s)he must first prove that you possessed the drugs in question. (S)he has two ways of doing this: actual possession and constructive possession.

Possession: actual versus constructive

To prove actual possession, the prosecutor must prove that the officers removed the drugs from your person, such as from one of your pockets. (S)he usually proves this through the testimony of the arresting officers. Proof of constructive possession, however, is completely different. Here the officers did not remove the drugs from your person. Instead, they recovered them somewhere else such as in your home or car. So the question becomes whether or not you owned or controlled them. The only way (s)he can prove that you did is by the circumstantial evidence surrounding their recovery.

Constructive possession examples

Examples make the legal doctrine of constructive possession easier to understand. In the first example, assume the following:

  • You and three passengers were riding in your car.
  • Officers pulled you over for a legitimate reason and proceeded to do a legal search of your car’s interior.
  • Your glove box was locked, but you gave the officers the key when they asked for it.
  • They found drugs in your glove box.

This is sufficient circumstantial evidence for the jury to reasonably infer that you owned the drugs because you controlled your glove box via the key which only you had.

Now assume the same facts, but with one crucial difference. In this example, the officers found the drugs hidden underneath one of your car seats. Now the jury cannot reasonably infer that you owned or controlled them. Why? Because all of your passengers had the same access to their hiding place as you did. Consequently, no one can reasonably determine which of you four constructively possessed them, and the jury must acquit you.