Understand the Differences between Actual and Constructive Possession of Controlled Substances
Actual vs Constructive Possession: What is the difference?
Understanding the difference between these two types of legal possession of an object, like illicit drugs, is essential to understanding a potential criminal case. The criminal justice system can be full of confusing legal terms (legalese). This is one of the reasons an experienced criminal defense attorney is crucial to having a shot at beating a charge.
Possession, in legal terms, refers to the control or ownership of an object. The law recognizes two main types of possession: actual possession and constructive possession.
What is Actual Possession?
Actual possession means that a person knowingly has direct physical control over an object. This means that the item is physically on their person, such as:
- A controlled substance in their pocket
- A firearm in their backpack
- An item in a bag or purse that also contains their personal identification, like a passport or ID
Since actual possession involves direct physical evidence, it is generally easier for the prosecution to prove in court. However, there are still valid defenses that an experienced criminal defense attorney can use to challenge an actual possession charge.
What is Constructive Possession?
Constructive possession means that while a person may not physically have an object on them, they still knowingly exercise control or dominion over it. This can apply in situations where an individual has access to an item or location where the object is found. Examples include:
- A firearm located inside a car’s center console or glove box when the driver is a prohibited possessor
- Drugs found inside a shared apartment or house that multiple people have access to
- An illegal item found in a storage unit or locker under a person’s name
Constructive possession does not require the object to be physically on the person but instead relies on proving knowledge and control over the object. Prosecutors often use circumstantial evidence, such as fingerprints on a container or the location of the object, to establish constructive possession.
Real Case Example
At Litwak Law Group, we successfully defended a client who inherited a house that contained a firearm hidden in a closet. The state attempted to argue constructive possession because the client owned the home. However, since he had no knowledge of the firearm’s existence, we demonstrated that he could not have constructively possessed it. As a result, the case was dismissed.
Key Differences Between Actual and Constructive Possession
- Actual possession means direct physical control (e.g., drugs in your pocket).
- Constructive possession means awareness and control over an item in an area you have access to (e.g., a firearm in your car, even if you didn’t put it there).
- Both types of possession can result in criminal charges, depending on the circumstances.
Defenses to Possession Charges
If you are facing possession charges, several legal defenses may apply, including:
- Lack of knowledge: The defendant was unaware the object was in their possession.
- Lack of control: The defendant did not have the ability to control the object.
- Joint possession: Another person had actual control over the item.
- Insufficient evidence: The prosecution has not proven the defendant’s knowledge or control.
- Illegal search and seizure: If the evidence was obtained unlawfully, it may be inadmissible in court.
Why You Need a Skilled Defense Attorney
Possession charges, whether actual or constructive, can carry serious legal consequences, including jail time, fines, and long-term criminal records. Understanding the nuances of possession laws is critical to building a strong defense.
We have extensive experience handling possession cases and fighting to protect our clients’ rights. Whether you’re facing drug possession, firearm possession, or any related charges, our team is here to help.
