Attorney
In Massachusetts, you don’t need to have drugs in your hand or even in your pocket to be charged with drug possession. State law allows prosecutors to pursue criminal charges based on something called constructive possession, which applies even when the drugs aren’t found directly on you.
If you’re facing charges in Worcester or nearby towns like Auburn, Millbury, or Shrewsbury, here’s what you need to know about constructive possession, how the courts interpret it, and what your defense options may look like.
What Is Constructive Possession Under Massachusetts Drug Laws?
Constructive possession means that, while you might not have had drugs on your person, you had power and intent to control over them.
How Does Constructive Possession Differ From Actual Possession?
Constructive possession differs from actual possession because it doesn’t require you to have drugs on your person, only the power and intent to control them.
Actual possession happens when you physically hold or carry a controlled substance, say, in your pocket, purse, or backpack. Constructive possession, on the other hand, refers to situations where the drugs are found nearby, but prosecutors argue that you had both the ability to control them and knowledge of their presence.
Massachusetts law allows police and prosecutors to file charges under M.G.L. c. 94C §34 or §32A based on this theory.
What Factors Establish Constructive Possession?
Courts look at several different factors to determine whether constructive possession applies. These include:
- Proximity to the drugs — Were the drugs found within your immediate reach?
- Control over the space — Did you own or control the area where the drugs were discovered (like a glove box or bedroom)?
- Knowledge of the drugs’ presence — Did you act in a way that suggested you knew the drugs were there?
- Behavior during the stop or search — Did you show signs of nervousness, make incriminating statements, or attempt to hide evidence?
- Statements by witnesses or co-defendants — Did anyone else implicate you in knowing about the drugs?
No single factor is enough to prove constructive possession. But when several align, the prosecution may decide to file charges.
How Do Massachusetts Courts Determine Constructive Possession?
The court will first consider the evidence, as well as precedents.
What Evidence Is Considered?
Massachusetts courts consider a combination of physical evidence, testimony, and behavior to determine whether someone constructively possessed a controlled substance.
This evidence may include:
- Fingerprints or DNA on drug packaging
- Statements made by the defendant during or after the arrest
- Surveillance footage showing access to or control over the area
- Control over the location where the drugs were discovered
- Witness testimony pointing to knowledge or use
It’s not just about where the drugs were. The important thing is whether the Commonwealth can prove you knew they were there and had the ability to control them.
Are There Notable Case Precedents?
Yes. In Commonwealth v. Resto, the Massachusetts Appeals Court upheld a conviction where drugs were found in a shared apartment bedroom. Although the defendant didn’t have the drugs on them, the court found enough evidence of constructive possession based on proximity, access, and conduct.
Other cases have turned on similar facts, whether the defendant had control over the space and demonstrated knowledge of the drugs.
What Are the Legal Consequences of Constructive Possession Charges?
Depending on the substance in question, whether there was intent to distribute, and other factors, you could be looking at multiple years in jail, as well as fines.
What Penalties Apply Under M.G.L. c. 94C §34 and §32A?
What penalties apply under M.G.L. c. 94C §34 and §32A?
Penalties under M.G.L. c. 94C §34 (simple possession) and §32A (possession with intent to distribute) vary depending on the type of drug and prior record.
Here’s a general breakdown:
- Class A substances (heroin, for instance): Up to 2 years in jail for a first offense
- Class B substances (cocaine or oxycodone, for example): Up to 1 year in jail or a fine up to $1,000
- Possession with intent to distribute: A more serious felony, with mandatory minimums in some cases
- Subsequent offenses: Often result in longer sentences and increased fines
In many cases, you’ll also face probation, mandatory drug education programs, and potentially substance abuse treatment.
How Do These Charges Impact Your Criminal Record?
A conviction for drug possession (constructive or otherwise) goes on your criminal record.
This can affect:
- Employment opportunities
- Professional licenses (especially in healthcare or education)
- College admissions or financial aid eligibility
- Housing applications
That’s why it’s important to challenge the charge as early and aggressively as possible.
What Defense Strategies Can Challenge Constructive Possession Allegations?
Each defense needs to be unique, but yours may include a lack of knowledge that the drugs were even there or a lack of control over the area.
Can Lack of Knowledge Be a Defense?
Yes. If you didn’t know the drugs were there, your attorney can argue that the intent element of constructive possession is missing.
Knowledge is key. Without proof that you were aware of the drugs (and had some control over them), the prosecution can’t meet its burden of proof.
This defense is especially strong in cases involving shared spaces, like a roommate’s bedroom or a friend’s car.
How Can Control Over the Area Be Contested?
If you didn’t control the area where the drugs were found, the prosecution’s case is weakened.
For example, if the drugs were in a locked glove compartment that only another person had the key to or in a bedroom that wasn’t yours, that undermines the argument that you had control over the location.
Your lawyer may gather witness statements, lease agreements, or security footage to show that others had equal or greater access.
What Role Does Unlawful Search and Seizure Play?
If the drugs were found during an illegal search, your attorney can file a motion to suppress the evidence.
Under the Fourth Amendment and Massachusetts law, police need probable cause or a warrant to search your home, car, or person. If they didn’t follow proper procedures, the judge may throw out the evidence, which can lead to a dismissal of charges.
Search and seizure violations are among the strongest defenses in possession cases.
How Should You Respond If Accused of Constructive Possession?
First, remember that you have the right to remain silent. Next, call an attorney. The right steps can make a real difference in your case’s outcome.
Immediate Steps To Take
If you’ve been accused of constructive possession, you should:
- Remain silent — Don’t answer questions or try to explain.
- Request an attorney — Politely but firmly say, “I want a lawyer.”
- Avoid posting about it — Don’t discuss the case on social media.
- Preserve evidence — Save texts, emails, or other proof that could support your defense.
- Contact a criminal defense attorney immediately.
Importance of Legal Representation
Constructive possession cases are often built on circumstantial evidence. An experienced criminal defense lawyer can:
- Review the search and seizure issues
- Challenge the control and knowledge elements
- File motions to suppress or dismiss
- Negotiate a reduction in charges or alternative sentencing
- Represent you in Worcester District Court or Superior Court
Don’t try to fight the charge alone. These cases are too complex, and the stakes are too high.
How Can Attorney Darren Griffis Assist in Constructive Possession Cases?
Attorney Darren Griffis has considerable experience representing clients in constructive possession cases.
What Expertise Does Attorney Griffis Offer?
Attorney Darren Griffis has handled a wide range of drug-related offenses, including possession, intent to distribute, and constructive possession cases across Worcester County.
He understands how prosecutors build these cases and how to take them apart. Whether it’s challenging the traffic stop, the warrant, or the logic of constructive possession itself, Attorney Griffis knows what works in local courtrooms.
How Does Local Knowledge Benefit Your Case?
Knowing the Worcester District Court system is more than procedural, it’s strategic.
Attorney Griffis brings:
- Familiarity with local judges and prosecutors
- Insight into probation policies and alternative sentencing options
- Experience with motions to suppress in local search and seizure cases
- A reputation for fighting aggressively on behalf of his clients
When you’re facing a possession charge without drugs on your person, local knowledge makes all the difference.
FAQ
Can I be charged if the drugs were in a shared space?
Yes. If prosecutors believe you knew about the drugs and had access to the space, they can pursue constructive possession charges.
What if I had no idea the drugs were present?
Lack of knowledge is a strong defense. If you didn’t know the drugs were there, the case against you may fall apart.
Does owning the property where the drugs were found affect my case?
It could, but ownership alone isn’t enough. The prosecution still has to prove knowledge and control.
How does Massachusetts law define “control” over a drug?
Control means having the ability to access or manage the location or container holding the drugs, even if you don’t own them.
Are there differences in penalties between actual and constructive possession?
No. Both forms of possession are punished under the same statutes. The distinction only affects how the prosecution tries to prove the case.
If you’ve been charged with drug possession in Massachusetts and the drugs weren’t on you, don’t assume the case is weak. Prosecutors regularly use constructive possession to secure convictions. The good news is that these charges can be fought (and often beaten) with the right legal defense.