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Actual vs. Constructive Possession in Criminal Cases

Many statutes relating to firearms or controlled dangerous substances require the State or Federal Government to show that a defendant unlawfully “possessed” the firearm or drugs. Many defendants are well aware of what the law considers “actual possession.” Simply put, this is when the police find a firearm or drugs on your person, or you otherwise have direct contact and control of the firearm or substance(s). Many defendants, however, are unaware (or are confused by) the concept of “constructive possession.” This most often comes up when defendants say. “someone else had the gun and said it was theirs, so why am I being charged with it!?” It all comes down, by and large, to the concept of “constructive possession.” 

The concept of “constructive possession” allows the Government to charge you with possession of a firearm or drugs even though the items were not found on your person. But to obtain a conviction, the Government must show that the defendant: (1) had knowledge of the presence of the objects; and (2) the defendant had the ability to exercise dominion or control over the objects. Knowledge is an essential element in these cases – a person cannot be deemed to have constructive possession of something they had no knowledge of. Furthermore, mere presence or proximity to the object alone is insufficient for a conviction. 

Courts and juries generally wrestle with several factors to determine whether a defendant had “constructive possession” over an object. Some common factors are:

  • If the drugs were hidden or in plain view; 
  • Ownership or control of the premises or vehicle in which the object was found; 
  • The defendant’s proximity to the objects (again, proximity alone is insufficient); 
  • Is there evidence of enjoyment or use of the object by the defendant; and 
  • Was the defendant in exclusive possession of the vehicle or premises in which the object was located. 

In short, the concept of “constructive possession” is widely used by prosecutors to broaden the scope of their case. Using this concept, the Government is able to charge more than one person with possession, even if there is just one firearm or one “package” of drugs.  It is important that you have an attorney that understands the nuances of “constructive possession”, because even the smallest fact can make all the difference in these cases and save you from serving several years in prison.  

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