From Passenger to Defendant: Constructive Possession in Cars, Apartments & Shared Rooms

A criminal charge is frightening, especially for immigrants who may fear deportation, but constructive possession cases are often defensible if handled early and strategically.

Immigrants in the United States, especially in Texas, face a unique and often frightening problem because of how constructive possession laws work. Under these rules, a person can be arrested or charged with possession even when the drugs or contraband were never found on their body. For many immigrants, this creates a dangerous situation where simply being near suspicious items, or in the wrong place at the wrong time, can lead to serious criminal and immigration consequences.

This can happen in everyday situations, such as:

• during a routine traffic stop when you’re only a passenger,
• in an apartment shared with roommates or family members,
• in a crowded shared room where belongings easily get mixed,
• or in a borrowed vehicle or rideshare you have no control over.

For immigrants, constructive possession charges are especially serious because they can lead to criminal convictions, immigration detention, and even deportation, even when you had no idea contraband was present.

This article explains what constructive possession law really means, what prosecutors must prove.

What “Constructive Possession” Means and How It Differs From Actual Possession

Many immigrants are surprised to learn that you can be charged with possession without ever touching, holding, or owning the item in question. In most cases, this refers to the possession of drugs, weapons, or other illegal contraband. This is where the idea of constructive possession comes in. Understanding this difference is essential because prosecutors often rely on constructive possession when they cannot prove the item was physically on you.

Actual Possession vs. Constructive Possession

Actual possession means you have something on your person, in your hand, pocket, backpack, or purse.

Constructive possession, however, is much more complicated. It applies when a person does not have the item directly on them but is accused of having:

1. Knowledge of the item, and
2. The power, and often the intention, to exercise dominion and control over it.

“Dominion and Control” Standard

Federal jury instructions, including the Ninth Circuit’s Model Criminal Jury Instructions §§3.15 and 8.65, explain constructive possession as having both:

• the power to control the item, and
• the intent to control it.

The Supreme Court has also recognized this concept. In Henderson v. United States, the Court noted that possession can include the ability to direct the disposition of an item; this means that a person can give instructions about what happens to it, even if they never physically hold it.

Texas Law: A Broader Definition of Possession

Constructive possession in Texas has its own statutory definition. Texas Health & Safety Code §481.002(38) defines “possession” as actual care, management, custody, or control.

This definition allows prosecutors to argue constructive possession and affirmative links in traffic stops, shared apartments, or any place where multiple people have access.

Because of this wide definition, people, especially immigrants, may be pulled into serious cases even when they had nothing to do with the drugs or contraband.

When a Car Stop Turns Into a Possession Case

Many immigrants are more exposed while they are in cars than at home. Because a simple traffic stop can quickly turn into a possession investigation. Even when you’re only a passenger with no control over the vehicle and no knowledge of what might be inside it.

Probable Cause vs. Proof: Two Very Different Standards

Police often assume that if drugs or weapons are found inside a vehicle, anyone in the car might be involved. In Maryland v. Pringle, the U.S. Supreme Court held that officers may have probable cause to arrest multiple occupants when contraband is discovered and nobody claims it.

However, probable cause is not proof of guilt.

A conviction for constructive possession still requires the government to show:

1. Knowledge: that you knew the drugs or contraband were there; and
2. Dominion and control; that you had the ability or intent to control the item.

The Eighth Circuit explained this clearly in United States v. Gilmore, noting that constructive possession requires not just “power,” but also “intention” to control the contraband.

In other words, being in the same car is not enough for a conviction.

Factors Courts Consider in Vehicle Cases

Prosecutors and police may point to certain factors to claim passenger constructive possession, such as:

• whether you had control or ownership of the vehicle,
• whether the contraband, controlled, or prohibited substance or item was found in an area within your reach,
• whether you made any statements suggesting knowledge,
• whether your fingerprints or DNA were on the item,
• whether you had exclusive access to a part of the car,
• attempts to hide, discard, or distance yourself from objects during the stop.

Why Immigrants Face Higher Risk in Vehicle Stops

Immigrants may face constructive possession claims more often because they frequently:

• carpool to work,
• rely on rideshares,
• borrow cars from friends or family,
• ride in vehicles with multiple occupants.

This means they may have no idea what is stored inside a glove box, trunk, or hidden compartment, but still risk being blamed. For a non-citizen, these arrests pose life-altering immigration consequences.

Even if illegal, active racial profiling by law officers increases the chances that a Hispanic person or other person of color will be detained by police for investigation, increasing the risk of a consequential arrest.

What to Do During a Traffic Stop

If the car you are traveling in is stopped by a police officer, follow these steps:

• Stay calm and respectful.
• Exercise your right to remain silent. You do not need to answer questions about ownership or knowledge of items.
• Do not agree to searches. Just say: “I do not consent to a search.”
• Do not make guesses or explanations. These can be used against you.
• Call your lawyer immediately if the officers find something suspicious in your car or if they try to arrest or question you further. 

Apartments & Shared Rooms: Joint Occupancy Requires an “Additional Nexus”

Constructive possession becomes even more complicated inside homes. Many immigrants live with roommates, relatives, or multiple families under one roof. In these shared spaces, belongings mix easily, and different people come and go; yet, prosecutors may still try to connect a single person to drugs or contraband found anywhere in the residence.

Courts, however, recognize that simply living in the same home is not enough to prove joint constructive possession. They require something more, an “additional nexus” linking the individual to the items in question.

What Counts as an “Additional Nexus” in Shared Room Possession Cases

Federal cases such as United States v. Blue (2015) and United States v. Hall (2017) make it clear: in shared spaces, the government must establish a connection stronger than co-residence.

Examples of evidence prosecutors may use include:

• the item being found on your side of a shared room,
• contraband stored in a drawer, closet, or container linked to you,
• keys, mail, or documents connecting you to the specific room or area,
• statements suggesting knowledge of the item,
• your personal belongings were found directly next to contraband,
• fingerprints, DNA, or digital evidence, such as messages or photos.

Texas Focus: The “Affirmative Links” Factors in Drug Cases

Texas handles constructive possession differently, and in many ways, more aggressively, than other states. Because Texas courts recognize that “mere presence” near drugs is not enough for a conviction, they developed the affirmative links test doctrine.

What Are “Affirmative Links”?

When multiple people share a space, a car, apartment, or room, prosecutors must show evidence that links the accused to the contraband, beyond simple presence.

Examples of affirmative links include:

• the accused was present when the drugs were found,
• drugs were in plain view,
• the person was close to the drugs and had easy access,
• the person appeared to be under the influence,
• other contraband or paraphernalia was present,
• incriminating statements were made,
• flight, nervousness, or suspicious behavior,
• odor of drugs on clothing or in the area,
• the person owned or controlled the place where the drugs were found,
• personal items (mail, ID, clothing) were near the contraband,
• the quantity of drugs was large or valuable,
• signs of attempted concealment,
• fingerprints or DNA on packaging or containers.

If You’re Charged: What To Do Next

If you are arrested, you need to act quickly and confidently:

1. Do not talk to police or investigators. Silence cannot be used against you, but statements can destroy your case.
2. Write down who had access to the vehicle or room.
3. Save texts, receipts, or messages showing where you were, who you were with, or who borrowed the space.
4. Get all immigration papers together, even if expired.
5. Contact criminal defense attorneys to receive a confidential consultation and to protect your rights. 

A criminal charge is frightening, especially for immigrants who may fear deportation, but constructive possession cases are often defensible if handled early and strategically. If you are arrested in Houston, TX, or have questions that might affect your freedom, you can call Ceja Law Firm, PLLC to receive a confidential consultation in English or Spanish.