In South Carolina, illegal drugs and non-prescribed narcotics are considered contraband, the mere possession of which is unlawful. To obtain a conviction of contraband possession must be proven. The law of possession was distinguished under State v. Hudson, which held that a conviction for the possession of drugs requires proof of possession. Possession can either be actual or constructive, coupled with knowledge of its presence. 277 S.C. 200, 284 S.E.2d 773 (1981)
In defining the two forms of possession, actual possession occurs when the contraband is found in the actual physical custody of the accused. Alternatively, constructive possession occurs when the accused has dominion and control, or the right to exercise dominion and control over either the contraband (drugs) or the premises upon which the contraband was found. State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981). Essentially this means that possession can be proven because of his or her relationship to where the contraband was found.
A conviction for possession requires not only proof of possession but knowledge, meaning the accused had an intent to control its use or disposition. “Knowledge can be proven by the evidence of acts, declarations, or conduct of the accused from which the inference may be drawn that the accused knew of the existence of the prohibited substances.” State v. Hernandez, 382 S.C. 620, 624, 677 S.E. 2d 603, 605 (2009). Once physical possession is established by the evidence, knowledge becomes a question for the jury. State v. Robinson, 310 S.C. 535, 539, 426 S.E. 2d 317 (1992).
A common mistaken belief by the accused is that if the contraband does not belong to them and they are unaware of its presence, they cannot be arrested for contraband possession. A common scenario in which this applies would where a driver borrows the owner’s car and in that car is contraband belonging to the owner of the vehicle and not the driver. The driver of the vehicle is pulled over and subsequently arrested because although the vehicle does not belong to him and the contraband does not belong to him he is in possession of the contraband.
For more information on what constitutes possession of contraband is and what the consequences are at law, contact your local criminal defense attorney Daniel Selwa at 843-492-5449 to discuss your best defenses. The law offices of Daniel Selwa are located at 516 29th Avenue North in Myrtle Beach, South Carolina.