Police search a car on I-85 with three people inside and find drugs tucked under a seat. All three get charged, even the ones who never touched the bag. That is constructive possession at work, and it is how many Greenville drug arrests happen: the drugs were not on you, but the state says they were still yours. Being charged this way feels backward, and it puts people who were simply in the wrong car or the wrong apartment in real jeopardy. Our drug defense attorneys at Eppes & Plumblee regularly defend these cases.
Actual Possession Versus Constructive Possession
Actual possession is straightforward: the drugs are on your body, in your pocket, in your hand. Constructive possession is the state’s way of reaching people when the drugs are found nearby instead. It lets prosecutors charge someone based on their relationship to the drugs or the place the drugs were found, rather than physical custody. Because it does not require the drugs to be on you, it sweeps in passengers, roommates, and guests.
What the State Actually Has to Prove
South Carolina doesn’t let the state win a constructive possession case just by putting you near drugs. In State v. Heath, the South Carolina Supreme Court confirmed that mere presence is not enough to prove possession. In State v. Stewart, the Court went further, clarifying that the state must prove two things beyond a reasonable doubt:
- Power to control: You could control the drugs.
- Knowledge and intent: You knew the drugs were there and intended to control what happened to them.
Controlling the car or home where drugs were found doesn’t satisfy both elements on its own. You must prove each element, and each can be challenged.
Shared Cars, Shared Homes, Shared Blame
Greenville sees a lot of these cases because so many situations involve shared space. A car with several passengers. An apartment split by roommates near downtown or along the commuter routes toward Clemson and Anderson. When drugs turn up in a common area, the state often charges everyone with access and hopes to sort it out later. That approach ignores what the law requires. Access to a room is not the same as control over the drugs, and living somewhere is not proof that you knew what was hidden in it.
The Mere Presence Defense
The gap between control and simple proximity is where these cases are won. In Heath, the defendant lived in his mother’s house and had just finished washing his car out front when police found crack cocaine hidden in a car-washing mitt in a recycling bin near the back door. Even with that connection, the Supreme Court reversed his trafficking conviction, holding the state failed to prove he possessed the drugs.
More recently, in Stewart, the trial judge told the jury it could infer knowledge and possession because drugs were found on property the defendant controlled. The Supreme Court held that instruction was improper and reversed his trafficking and possession convictions. These decisions matter for anyone charged as one of several people near a stash. Our attorneys look at who owned the space, who had access, whether anything ties the drugs to you specifically, and what the state can prove about your knowledge.
Charged for Drugs That Were Not on You
A constructive possession charge is often weaker than it first appears because the state must prove control and knowledge, not just that you were in the room or the car. If you were arrested for drugs found near you rather than on you, that theory can be challenged. Contact Eppes & Plumblee through our contact page or call 864-235-2600 to have the state’s case tested against the law.