In Criminal

Car Stop and Arrest

In South Carolina, a police officer can lawfully arrest every person in a vehicle if illegal substances are found and probable cause exists. Depending on where the drugs are located in the car is a determining factor in whether probable cause exists to constitute possession. Courts look at whether the individuals in the vehicle have either actual or constructive possession to make this determination.

Actual Possession

This condition exists when a person has physical and present possession of the drugs. This means that those are physically present on your person. This can be an individual holding the illegal substances or they are found in your pocket, jacket, purse, shoes, or anywhere else on your body.

Trying to fight an actual possession charge is a very challenging obstacle. Because the drugs are found directly on your person, the evidence is stacked against you. An experienced lawyer will be able to assist you by arguing against the legality of the police stopping or searching your vehicle.

image of drugs and handcuffs

Constructive possession charges create an opportunity to build a stronger case.

Constructive Possession

This situation exists when a person is not in actual possession of the drugs, but they have the ability to exercise dominion or control over them. Courts will look at whether the person had the access or knowledge of the drugs. Even if they are not physically found on you, you may still be found to have been constructively possessing them. If you are in close proximity to the illegal substances, you will be held accountable for what is in your immediate surroundings.

Constructive possession creates more of an opportunity for someone to show that they were not in possession of the drugs. When being charged, there is an opportunity to show that there is no evidence that a person was using the illegal substances or even knew about their existence. In these cases, the prosecutor must show that:

  1. you knew the drugs were present;
  2. you had control or could have had control over those;
  3. you knew they were illegal.

These criteria make the prosecutors case a lot more difficult and create more of an opportunity for a person to build a stronger case.


The facts of each drug charge are different and an experienced attorney may be able to assist you with your situation. Contact a lawyer as soon as possible if you find yourself in a situation that involves illegal substance.
Call Henderson & Henderson at 843-212-3188 to speak with your local attorney who will be able to assist you with your SC drug charge

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