Under federal law, in cases where individuals are charged with possession of a controlled substance or possession with intent to manufacture or distribute (PWIM/PWID), the government must prove that the person charged with the crime (the defendant) possessed the drugs or had the drugs within the person’s control.

Proof of ownership is not required. In other words, the government does not have to prove who bought, purchased or otherwise acquired the drugs. Possession is enough. There are two types of “possession,” actual possession or constructive possession.

Related: False Confessions in Philadelphia Criminal Cases


Actual possession is what it sounds like and means that the defendant had physical possession of the drugs, i.e., in the defendant’s bag or in their pocket.


Proving constructive possession is a bit more complex and usually depends on circumstantial evidence. The issue of constructive possession often comes into play in drug cases where the drugs were not actually found on the defendant’s person or otherwise within their possession (i.e., in their bag).

For instance, multiple individuals are present at a house in Philadelphia when a drug bust occurs. Drugs are located on a table within reach of multiple people. The individual arrested and charged with possession may be able to successfully argue that they did not have actual or constructive possession of the drugs at any given time. Under federal law, factors such as, merely being in close proximity to drugs, simply being present on the property where drugs are located, or associating with people who possess drugs, are not enough to support a finding of possession.

In order to establish constructive possession, the government must show that the defendant knew about the drugs and had control over them. See United States v. Brown, 3 F.3d 673 (3d Cir. 1993), where the Third Circuit (federal appeals court for Pennsylvania) stated:

“Although the government need not show proof of actual possession, to show ‘constructive’ possession of an illegal substance the government must submit sufficient evidence to support an inference that the individual knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both ‘dominion and control’ over an object and knowledge of that object’s existence.”

In a nutshell, constructive possession requires proof that the defendant had the power and intention to control the drugs, even though the drugs were not actually in the individual’s physical possession.


In addition, it is well established that in federal drug cases in Pennsylvania, one or more people can possess drugs at a given time. Basically more than one person may have the power and intention to exercise control over a controlled substance. This is called joint possession. Someone who jointly possesses drugs with another person can still be found guilty of possessing the drugs.

Related: Reducing a Mandatory Minimum Prison Sentence in a Pennsylvania Drug Case


If you or a loved is facing federal drug charges in Philadelphia, please call our office for a free consultation. David S. Nenner is an experienced trial lawyer specializing in drug and gun cases. (215) 564-0644

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