What is Possession?

Most know that it is illegal to possess illicit narcotics, stolen weapons, alcohol if a minor, but does that mean that you must have the contraband on your person, in your hand? In criminal cases, the courts recognize two forms of possession: actual possession and constructive possession.

Conviction of possession requires proof of possession, either actual or constructive, coupled with knowledge of the contraband item’s presence.

Actual possession occurs when the item is found to be in the actual physical custody of the person charged with possession. State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981).

Constructive possession occurs when the individual had had dominion and control of the item, or the right to exercise dominion and control of the item, constructive possession can be established by circumstantial as well as direct evidence, and constructive possession of an item may be shared between two or more persons. In order to prove constructive possession, the State must show the defendant had dominion and control, or the right to exercise dominion and control, over the item. State v. Brown, 267 S.C. 311, 227 S.E.2d 674 (1976).

"Where contraband items are found on the premises under the control of the accused, this fact in and of itself gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury." State v. Hudson, 277 S.C. at 203, 284 S.E.2d at 775. Therefore, constructive possession occurs when the person charged with possession has dominion and control over either the item or the premises upon which the item is found.

What about intent and knowledge? Both are important in this context. Possession requires more than mere possession of the contraband. An accused must intend to possess the item and must know that the item is illegal contraband. Again, where the item is found on the premises under the control of the accused, an inference of knowledge is imputed to the accused.