You might think that if police find illegal drugs at the scene of a crime, only the person physically holding them will face charges. But in Tennessee, that’s not always the case. Law enforcement can charge you with constructive possession, meaning you could be accused of a crime simply because you were near illegal substances—even if they weren’t yours and you had no idea they were there. Constructive possession can be an issue in drug cases, especially when multiple people are present in a house, car, or a shared space (such as a cabin or hotel room).
So how does Tennessee law define possession, and what does the prosecution need to prove to convict someone for a constructive possession charge? In this guide, we’ll break down exactly what possession means, how the State attempts to prove constructive possession, and what you can do to defend yourself if you’re facing these charges.
What Does Possession Really Mean Under Tennessee Law?
Tennessee law enforcement recognizes two types of possession:
- Actual Possession: This is what most people think of as possession. It means illegal items are found directly on your person—in your pocket, in your hand, or in a bag you’re carrying. If police find marijuana in your pocket during a search, proving actual possession is usually clear-cut.
- Constructive Possession: This is where things get more complex. Constructive possession doesn’t require you to physically hold the illegal items. Instead, the prosecution must convince a court that you had knowledge of the illegal substances and the ability to control them.
Think of it this way: imagine drugs found in the glove compartment of a car you’re driving, under a couch in a house where you’re visiting, or in a cabin you rented with friends in Gatlinburg. Even if those drugs weren’t physically on you, the State can argue that because you had access to them or some level of control over the location where they were found, you are legally responsible.
However, Tennessee courts have made it clear that simply being near drugs isn’t enough for a conviction. In the case of State v. Robinson (2013), the Tennessee Supreme Court ruled that being present where drugs are found, or knowing someone who has drugs, is not sufficient to prove possession. Prosecutors must demonstrate that you had both the power and the intent to control the substances.
Unfortunately, the application of this rule in Tennessee courts can be inconsistent. People can be charged based on very weak evidence—like simply being in a house or car where drugs are present, even without any real control over them. This is why constructive possession cases are intensely fact-specific, and often rely heavily on circumstantial evidence. Prosecutors will try to connect you to illegal substances using things like:
- Where the drugs were located.
- Personal belongings found nearby.
- Statements you made during an arrest (even casual remarks).
If you’re facing charges based on a constructive possession theory, it’s critical to have an experienced East Tennessee criminal defense attorney who knows how to challenge weak or speculative evidence and protect your rights.
How Can the State Attempt to Prove Constructive Possession?
Remember, just being near drugs is not enough for a conviction in Tennessee. The prosecution has to prove you had both intent and ability to control the illegal substances. This requires more than just assumptions. In order to build a case, prosecutors often focus on these factors:
- Ownership or Control of the Location: If drugs are found in a place you own, rent, or otherwise control (like your house, apartment, or hotel room), the prosecution will argue you are responsible for what’s inside. But simply being the renter or owner, especially in shared living situations, doesn’t automatically equal possession.
- Proximity to Illegal Items: Being physically near drugs can raise suspicion, but proximity alone isn’t proof of control. If drugs are under the passenger seat of a car you’re in, the State still needs to prove you knew about them and had control over them.
- Fingerprints, DNA, or Other Direct Links: If your fingerprints or DNA are found on drug packaging, scales, or paraphernalia, it’s stronger evidence the prosecution will use to suggest you handled the items. This type of evidence is often used not only in possession cases but also to support more serious charges like felony drug sale or felony drug sale and delivery. However, law enforcement often doesn’t test for this evidence, and a good defense attorney can highlight this lack of forensic proof as a major weakness in the State’s case.
- Incriminating Statements: Anything you say to the police can be used against you. If you admit to knowing about the drugs or say anything that implies ownership or control, prosecutors will use those statements as evidence. This is why it is absolutely crucial to exercise your right to remain silent and contact an attorney immediately if questioned by police. Even casual comments can be taken to suggest possession.
- Suspicious Behavior: Actions that suggest you knew about drugs—like trying to hide something, making sudden movements when police arrive, or running away—can be used as evidence that you were aware of illegal items and trying to conceal them. However, nervous behavior alone is not proof of possession, and a strong defense can challenge these interpretations.
As previously stated, constructive possession cases are very fact-dependent. The prosecution needs to build a case using these kinds of factors, but the evidence can be weak, circumstantial, or speculative. This is where a Tennessee criminal defense attorney becomes your strongest advocate.
How To Beat Constructive Possession Charges
If you’ve been charged with constructive possession, remember: a charge is not a conviction. The prosecution must still prove your guilt beyond a reasonable doubt. A skilled defense attorney can challenge constructive possession charges by identifying weaknesses in the evidence and raising doubts about whether you truly had control or knowledge. Here are some common defense strategies:
- Challenging Evidence of Control:
- Lack of Forensic Evidence: If there are no fingerprints or DNA linking you to the drugs, or plastic bag, this significantly weakens the prosecution’s argument that you handled or controlled the items.
- No Proof of Dominion Over Location: Simply being present in a place where illegal substances are found does not automatically prove you controlled those substances. If drugs were found in a shared space, your attorney can argue the prosecution has failed to show why those drugs should be attributed to you and not anyone else present.
- Emphasizing “Mere Presence” is Not Enough:
- Location Alone is Insufficient: Tennessee law requires more than just being in the vicinity of drugs. For instance, if you were a passenger in a car and drugs were found hidden under the driver’s seat, that alone doesn’t prove you knew about or controlled those drugs.
- Lack of Personal Connection to the Drugs: If the prosecution can’t connect you to the drugs beyond your mere presence in the same location, their case is weak.
- Highlighting Shared Spaces and Unclear Ownership: Constructive possession charges are particularly vulnerable in situations where drugs are found in shared or multi-user locations:
- Hotel Rooms, Rentals, and Airbnbs: Just because a room is rented in your name doesn’t mean you are responsible for everything inside, especially if multiple people have access.
- Shared Vehicles: If you were borrowing a car or were a passenger, drugs found in the vehicle are not automatically yours. The prosecution must prove you knew about them and had control.
- Multi-Resident Homes: Drugs found in common areas of a house or apartment shared by multiple residents don’t automatically belong to any single individual.
A strong defense strategy focuses on dismantling these assumptions, challenging the prosecution’s evidence, and emphasizing the lack of concrete proof of your control or knowledge of illegal substances.
Barnes & Fersten: Protecting Your Rights In East Tennessee
At Barnes & Fersten, our criminal defense attorneys understand that in constructive possession cases, every detail matters. We conduct a thorough investigation into the evidence, rigorously challenging fingerprint and DNA analysis (or the lack thereof), scrutinizing witness testimony, and relentlessly demonstrating that mere presence is not enough to establish possession under Tennessee law. We will fight to ensure that weak, speculative evidence doesn’t cost you your freedom.
Our team has a proven track record defending clients against drug possession charges throughout East Tennessee. Whether it’s demonstrating that someone else had control, highlighting the absence of forensic evidence, or exposing law enforcement’s rush to judgment, we build a strategic defense tailored to the specific facts of your case.
If you or a loved one has been charged with constructive possession in East Tennessee, don’t face it alone. Contact Barnes & Fersten for a free and confidential consultation. Let our attorneys start building a strong legal defense for your case today.
Attorney At Law, Managing Partner
Brandon D. Fersten is an esteemed Knoxville attorney practicing DUI, criminal defense, and juvenile law. Known for his empathetic approach and commitment to his clients, he brings a record of favorable case outcomes including dismissals and not guilty verdicts at jury trials resulting in Brandon being recognized as one of the “Top 40 Under 40” in Criminal Defense, U.S. News’ Best Lawyers: “Ones to Watch,” and Super Lawyers’ “Rising Stars”. Brandon’s professional accolades, combined with his passion for justice, position him as a reliable criminal defense advocate in the East Tennessee legal landscape, including Knox County, Blount County, Sevier County, Roane County, Anderson County, and Cumberland County.
