In drug cases under Article 112a, UCMJ, “constructive possession” is a legal doctrine used when the drugs are not found on the service member’s person. The prosecution must prove that the accused had knowing and intentional control over the illicit substance. This is evaluated by looking at the totality of the circumstances to determine if the accused had both the knowledge of the drug’s presence and the ability and intent to exercise dominion and control over it. It is more than just mere proximity to the drugs.
To prove constructive possession, the government will present evidence linking the accused to the location where the drugs were found. For example, if drugs are found in a barracks room, the prosecution will show that the room was assigned to the accused and that they had primary access to it. They might present evidence that the drugs were found among the accused’s personal belongings. The goal is to show that it is highly probable the accused knew about the drugs and had the power to control them, even if they were not physically holding them.
A military defense attorney will challenge this by arguing that the government has not proven exclusive control. They will present evidence that other individuals had access to the area where the drugs were found, such as a roommate or frequent guests. They will argue that the drugs could have belonged to someone else. The attorney will contend that mere presence in a location where drugs are found is not sufficient to prove knowing possession. The government must rule out the reasonable possibility that the drugs belonged to another person to secure a conviction based on constructive possession.