What Is Constructive Possession?
My name is Matt Eichelberger, and I run the criminal defense division of Eichelberger Law Firm here in Jackson, Mississippi. We represent clients all across the state — from the Gulf Coast all the way up to the Tennessee line.
I want to talk about something called constructive possession. We see it most often in drug cases, though it also comes up in firearms cases and stolen goods cases.
So what is it? Constructive possession is the other way possession can be proven, besides actual possession.
Actual possession is simple: the substance is in your hands, in your pocket, or directly on you. Constructive possession is everything else. The most common scenario involves cars — though it comes up in homes as well.
Here's a basic example. Say someone is driving down the road, they get pulled over, and there are drugs sitting in plain view on the passenger seat. That’s going to be a straightforward constructive possession case almost every time. But there's a lot more to it, and that’s what I want to walk through now.
The Three Elements Prosecutors Must Prove
To prove constructive possession, the state has to establish three things:
- That the person knew the substance was there.
- That the person knew what it was.
- That the person had dominion and control over the area where it was found — meaning they were exercising ownership over that space.
You need both knowledge and control — not one or the other, but both.
The Curry v. State Standard
About 50 years ago, the Mississippi Supreme Court set out the governing rule on constructive possession in a case called Curry v. State. Mississippi courts have followed it ever since. In fact, the Mississippi Court of Appeals relied on Curry just last week, affirming a conviction out of Lincoln County.
Here’s the key language from Curry: "proximity is usually an essential element, but by itself, it is not adequate in the absence of other incriminating circumstances."
That phrase — "other incriminating circumstances" — is where the rubber meets the road. Mississippi courts have reinforced this rule over and over again for decades: just because drugs are found on a premises or in a vehicle doesn’t mean everyone nearby is guilty. Physical proximity alone is not enough.
Real-World Example: Driver, Passenger, and a Hidden Compartment
Here’s a scenario I’ve seen multiple times over the course of my career. A person is driving a truck with a passenger. In the center console, there's a hidden compartment — hollowed out — with a significant amount of methamphetamine or cocaine inside. These drugs don’t have a strong odor, especially if they’re wrapped up, so no one would detect them by smell the way they might with marijuana.
The driver gets pulled over, let’s say for an outstanding ticket. He’s arrested, the vehicle is taken in, and officers conduct an inventory search. During the search, they notice something off about the center console — maybe a torn corner of the lining, or carpet that doesn’t lay right. They find the hidden compartment and the drugs inside.
The driver is the record owner of the vehicle. His name is on the title. The passenger has no connection to the vehicle at all.
Can the state go forward against the driver? Probably, yes. There are still defenses to work through — the stop, the search, and other issues — but the state has a strong case against the driver.
The passenger, on the other hand, is a different story. All the state has against that person is proximity. Under Curry and every case that has followed it for 50-plus years, that is a very poor case. Unless the passenger said something like, "I know the drugs are in there and they’re mine," or tried to run, or did something else that showed they knew what was going on, there’s no real case. Those cases often get dismissed after solid pushback from a defense attorney. I’ve had that happen myself, even this year.
The point is: being a passenger in someone else’s vehicle, in the presence of drugs found in a hidden compartment, is not enough. It doesn’t mean they won’t arrest the passenger, indict them, or even take them to trial. But under Mississippi law, on those bare facts alone, a conviction would likely be overturned by the Mississippi Supreme Court.
When the Facts Change the Analysis
Small changes in the facts can shift the case significantly. For example:
If the passenger is found with drug paraphernalia on their person, that creates a connection. That’s a better case for the prosecution.
If the drugs weren’t in a hidden compartment but in a backpack behind the passenger seat — and that backpack contained the passenger’s wallet, ID, and clothing — then that’s the passenger’s property. That’s a stronger case against the passenger and a better defense for the driver, who may not have known what was in someone else’s bag.
These variables are real-world, and they matter. Constructive possession cases require a careful look at body camera footage, police reports, and what was (or wasn’t) said at the scene. The facts are never exactly the same.
Shared residences raise similar questions. When drugs are found in one room — or in a common area — and there are multiple roommates, it can be very difficult for the state to prove constructive possession against anyone in particular. Sometimes they simply can’t.
Constructive Possession Beyond Drug Cases
Everything I’ve described applies in drug cases, but the same legal framework works in other contexts too — firearms charges against convicted felons, stolen goods cases, and similar offenses where the state has to prove a person had dominion and control over contraband they weren’t directly holding.
Constructive possession is a well-litigated area of Mississippi law. The rules are clear. The facts, however, are never the same from case to case. If you have questions about a constructive possession charge in Mississippi, don’t hesitate to call us.