Facing a drug possession charge is a serious legal matter that can have lasting consequences on your freedom, reputation, and future. Even if you believe the charges are unfounded or that you were in the wrong place at the wrong time, the legal system often treats different types of possession cases with significant weight. In many instances, just being near a controlled substance can result in an arrest—regardless of whether the drugs were yours.
New laws and policies may vary by jurisdiction, but prosecutors in most areas continue to pursue possession charges aggressively. A conviction can result in jail time, steep fines, a permanent criminal record, and difficulties finding employment or housing. Additionally, the complexities of search and seizure laws, constitutional rights, and drug classification statutes make these cases difficult to handle without experienced legal representation.
If you’ve been accused of possessing a controlled substance, you need to take immediate action to protect your rights and build a strong defense. At King Law Offices, we understand the stakes involved and the stress you’re under. We’ll review every detail of your case, challenge weak evidence, and fight for the best possible outcome on your behalf. Call King Law Offices today at (888) 748-KING to schedule your initial case consultation.
Actual Possession vs Constructive Possession
North Carolina law divided possession into two types of possession: actual possession and constructive possession.
Actual Possession
A person is considered to be in actual possession of a controlled substance when the drugs are found directly on their body. This could include substances discovered in a pocket, a bag being carried, or even held in hand.
To establish actual possession, prosecutors often rely on the following elements:
- Physical proximity: The drugs were discovered on the defendant’s person—such as in their clothing or belongings.
- Lack of shared access: No one else had equal or plausible access to the drugs, strengthening the case that the defendant alone was in control of them.
- Intent to possess: The defendant knew the nature of the substance and intended to possess it. For example, if the defendant was carrying cocaine, they cannot credibly claim they thought it was baking soda.
Once drugs are physically discovered on someone’s person, the legal presumption of possession becomes very difficult to overcome. Mounting a successful defense at this point requires a strategic, fact-driven approach that challenges the state’s assumptions and evidence.
Constructive Possession
Constructive possession refers to situations where a person may not have physical contact with a controlled substance but still has the power and intent to control it. To establish constructive possession, two key elements must be present:
- Knowledge of the drug’s existence, and
- The ability to exercise control over it, either directly or through others.
Common examples of constructive possession include drugs found in a shared car, inside a jointly occupied apartment, or stored in a locked shed located on the defendant’s property.
Because there may be multiple people with access to these areas, constructive possession is generally harder for prosecutors to prove than actual possession. They must clearly demonstrate that the defendant knew about the drugs and had both the opportunity and intent to control them. Without strong evidence connecting the accused to the substance, these cases are more vulnerable to reasonable doubt.
Possession with Intent to Sell/Distribute/Deliver
Possession with intent to sell, distribute, or deliver does not always require direct evidence of a drug transaction. In many cases, the quantity of the controlled substance alone can be enough for law enforcement to infer criminal intent. Additional indicators may include:
- Individually packaged doses
- Large sums of cash, particularly in small denominations
- Scales, baggies, or other packaging materials
- Text messages or communications suggesting drug sales
Even without catching someone in the act of distribution, this type of circumstantial evidence can be used to support a serious criminal charge. Prosecutors often rely on these clues to elevate a simple possession charge into a much more severe offense.
These three types of possession—actual, constructive, and possession with intent—are among the most serious drug-related offenses under the law. Each has the potential to lead to felony charges, carrying harsh penalties that may include years or even decades of imprisonment, depending on the substance and surrounding circumstances.
Possession of Drug Paraphernalia
Drug paraphernalia refers to any item or equipment used to consume, prepare, or store illegal drugs—such as bongs, rolling papers, crack pipes, syringes, or grinders. In North Carolina, simply possessing one of these items is not enough to secure a conviction. Prosecutors must prove that you intended to use the item for drug-related purposes.
For example, rolling papers used for tobacco are legal, while rolling papers intended for marijuana use could lead to charges. The distinction lies in the intent behind the possession.
In most cases, possession of drug paraphernalia is classified as a misdemeanor in North Carolina. However, the consequences can still be serious—especially when combined with other drug charges. Convictions may result in fines, probation, or even jail time, along with a permanent mark on your criminal record.
Defenses
Below is a list of some of the most common defenses to different types of possession in North Carolina.
Unlawful Search and Seizure
The Fourth Amendment to the United States Constitution demands that law enforcement personnel have ‘probable cause’ to search and seize items in your possession. The exclusionary rule is a fundamental legal principle that bars prosecutors from using evidence obtained through illegal searches or seizures. If law enforcement violates your constitutional rights—such as conducting a search without a warrant or probable cause—any evidence they gather as a result may be deemed inadmissible in court.
This rule applies nationwide, including in North Carolina, and serves as a critical safeguard to ensure that law enforcement follows proper procedures. If evidence against you was collected unlawfully, it may be excluded from your case, which can significantly weaken the prosecution’s position or even lead to a dismissal of charges.
Chain of Custody Issues
When police seize a suspected controlled substance from a defendant, strict procedures must be followed to maintain the integrity of the evidence. This includes promptly transferring the substance to a secure location, such as a designated police evidence room, where it can be properly logged, stored, and tracked.
If there are any gaps, inconsistencies, or mishandling in the chain of custody, a defense attorney may challenge the reliability of the evidence. One possible argument is that the substance presented in court is not the same substance originally taken from the defendant. Questions about tampering, contamination, or substitution can raise reasonable doubt and, in some cases, result in the evidence being excluded altogether. Maintaining a clear and documented chain of custody is essential for the prosecution to prove that the evidence is authentic and trustworthy.
The Substance Was Not Illegal
When law enforcement seizes a suspected illegal substance, an arrest is often made based on the assumption that the substance is unlawful. However, this assumption must be verified through scientific testing. The seized material must be sent to a certified crime lab for chemical analysis and positive identification. If the analysis reveals that the substance is not, in fact, illegal, the charges may be dropped—or the defendant may be acquitted at trial.
Another possible defense involves challenging the reliability or integrity of the crime lab itself. North Carolina’s crime labs have faced numerous allegations of misconduct, including mishandling evidence and falsifying results. If a defense attorney can prove that lab procedures were flawed or that the lab engaged in misconduct, the evidence may be discredited or excluded altogether.
Entrapment
The entrapment defense applies when law enforcement induces someone to commit a crime they would not otherwise have committed. The core principle behind this defense is to prevent the police from coercing or encouraging unlawful behavior solely for the purpose of making an arrest.
That said, not all police tactics qualify as entrapment. Sting operations are legal as long as the defendant was already predisposed to commit the crime. If prosecutors can show that the defendant was willing and ready to break the law without pressure from law enforcement, the entrapment defense is unlikely to succeed.
“The Drugs Were Planted”
A defendant is generally not guilty of possession if they did not knowingly possess the drugs in question. One possible defense is to claim that someone else planted the drugs on their person, in their vehicle, or in their home.
However, once drugs are found in a place the defendant controls, it becomes their responsibility to demonstrate that they did not know the drugs were there. This can be a difficult burden to meet, especially when drugs are discovered in personal spaces like a pocket, glove compartment, or dresser drawer.
The Doctrine of Willful Blindness
The legal concept of willful blindness prevents a defendant from escaping responsibility by deliberately avoiding knowledge of the drugs in their possession. Courts use this doctrine to stop individuals from shielding themselves with plausible deniability.
For instance, if someone agrees to carry a suitcase across international borders and intentionally avoids learning what is inside, they can still be held legally accountable if the bag contains illegal drugs. This is why agreeing to carry a stranger’s bag through an airport is extremely risky—it may not matter whether you knew what was inside, if you chose not to know.
Contact a North Carolina Criminal Defense Lawyer To Learn More About Your Legal Rights.
North Carolina prosecutors are known for taking an aggressive approach in drug possession cases, often working quickly to build a case against the accused. This swift action is exactly why anyone arrested for any type of possession of a controlled substance should act just as quickly to protect their rights.
Securing skilled legal representation immediately after an arrest can make a significant difference in the outcome of your case. The earlier a defense strategy is developed, the more opportunities exist regarding challenging the charges, suppressing evidence, or negotiating a favorable resolution.
If you’re facing drug possession charges, contact King Law Offices at (888) 748-KING to speak with an experienced North Carolina criminal defense attorney who will fight to protect your future.
We proudly serve Forsyth County, Mecklenburg County, Haywood County, and Watauga County in North Carolina as well as York County in South Carolina.
We proudly serve Winston-Salem, Cornelius/Charlotte, Waynesville, and Boone in North Carolina as well as Rock Hill in South Carolina.