Recreational possession and usage of any type of drug is illegal in Arkansas. In order to convict you of a drug crime, however, the prosecutor must first prove that you owned or controlled the drugs in question. Absent proof of that threshold issue, the prosecutor cannot convict you.

In this post, we will look at why it can be difficult to determine possession.

Constructive possession

Constructive possession represents one of the two ways in which the prosecutor can prove his or her case against you, actual possession representing the other way.

Actual possession is easy to understand. It means that the law enforcement officer(s) recovered the drugs in question from your person, such as from one of your pockets. Actual possession is likewise easy to prove. All the prosecutor needs is the credible testimony of one of the officers that (s)he recovered the drugs that way. Since you actually possessed them, you also owned and controlled them.

Constructive possession, on the other hand, is harder to understand and even harder to prove. Here the officers failed to recover the drugs from your person. Instead, they recovered them from your home, your car, etc. Consequently, only the circumstantial evidence surrounding their recovery exists. And this circumstantial evidence must be compelling enough that the jury can make the reasonable inference that you owned or controlled the drugs beyond a reasonable doubt.

Two examples, one crucial difference

To help you understand constructive possession, consider the following two examples. Four facts apply to the first example as follows:

  1. The officer testifies that (s)he pulled you over for a traffic violation.
  2. You had three passengers in your car at the time.
  3. (S)he searched your car legally.
  4. (S)he found the drugs hidden in your locked console, the key to which you voluntarily provided him or her.

This is compelling circumstantial evidence. You owned the car and its console. You had the only key to it. Consequently, the jury can reasonably infer that you owned and controlled the drugs hidden inside it.

In the second example, the first three facts again apply. However, the fourth fact changes. Now the officer must admit that (s)he found the drugs hidden in your car’s unlocked console. This is a big problem for the prosecution. Any one of your three passengers, including the two in the back seat, had just as much access to the unlocked console as you did. They likewise had just as much opportunity as you did to place the drugs in it.

Whose drugs are they?

The answer is “who knows?” Based on this circumstantial evidence, the jury has no way to reasonably infer which of the four of you owned and controlled the drugs. Consequently, they cannot convict you of whatever drug crime the authorities charged you with.