Many people believe you can only become a defendant if police actually find an illegal item in your hand, pocket, or bag. But this is a common misunderstanding that can lead to dangerous legal assumptions. Understanding the difference between physical and constructive possession is crucial, as it means you could face criminal charges and severe penalties even if the evidence weren’t literally found on your person.
What Is Possession?
While this might sound like a very simple question, it’s actually more complicated than it seems. Courts recognize several types of possession, all of which can lead to criminal liability.
Actual Possession
Actual possession happens when you physically have the item on you. This could include drugs in your backpack or purse, or a weapon in your waistband. It is the most straightforward kind of possession.
Constructive Possession
Constructive possession means you can be charged with possessing illegal drugs or weapons even if the object is not physically on your person or in something you are holding. For instance, if narcotics are locked in your locker or a gun is in the trunk of your car (or you’re in someone else’s car and there is a gun in there), you could be convicted of possession in some cases.
Joint Possession
Joint possession refers to situations where more than one person shares access and control over a particular item. For example, if illegal substances are kept in a shared apartment or car and everyone living there has knowledge and some control over these items, the law may hold each person responsible.
Knowing how possession is interpreted is important because you can face serious criminal consequences without physically having anything illegal on you.
How to Prove Constructive Possession
Proving constructive possession in court is more complex than simply showing someone was in the same room as an illegal object. Prosecutors have to establish specific facts connecting a person to the item in question.
They must prove the following elements beyond a reasonable doubt:
Knowledge of the Item
To be convicted, the prosecutor must show that you actually knew that the item was in the place it was found. This can be demonstrated through witness testimonies, statements you made, or any circumstance that makes clear you were aware of the contraband’s presence.
Understanding the Illegal Nature
It’s not enough to just know about the item – you also must have understood it was illegal. For example, this might be shown by your familiarity with the item, nervous or evasive behavior, or evidence that you took steps to conceal the object from view.
Power to Control or Influence the Item
Constructive possession also requires that you have the ability to manage, move, or dispose of the contraband, even if you didn’t physically touch it.
Courts may infer this from facts such as:
- Being the owner or primary user of the place where the item was discovered.
- Having a key or unhindered access to the location.
- Your proximity to the item when law enforcement found it.
- Statements you made linking yourself to the object, or actions suggesting you tried to hide or claim it.
- Personal items – like your wallet, IDs, or mail – located close to the illegal item.
If they can prove these elements, you can be convicted of a crime even though you didn’t have anything in your actual possession.
Common Defenses to Constructive Possession Charges
If you’re facing constructive possession charges, your criminal defense lawyer has a few different defenses they can raise. Some common ones include:
Lack of Knowledge
You can’t be guilty of possessing something you didn’t even know was there. If prosecutors can’t prove that you were aware of the item’s presence, such as drugs found in a borrowed car or a roommate’s belongings, you could be acquitted.
No Control Over the Item
Constructive possession requires the ability to influence or manage the banned item. If you had no real authority over the place where the contraband was found – for example, a friend’s backpack in your living room or a locked room you don’t have the key to – this challenges the main elements of the charge.
Evidence Obtained Illegally
If police found the evidence during an illegal search, the entire case may fall apart. Violating your Fourth Amendment rights by searching your vehicle, home, or person without a proper warrant or probable cause can result in the evidence being thrown out of court.
Mere Presence/It Belongs to Someone Else
Another argument is that the item simply wasn’t yours, even if you know it existed or you were close to it. If someone else had a stronger connection to the object in question, and their actions or belongings tie them to it, this could lead to an acquittal. Mere presence does not equal guilt, even if you knew the item existed.
Contact Our Lexington Criminal Defense Lawyers for a Free Consultation
Building a solid defense is possible with the right evidence and the right legal representation. At Suhre & Associates DUI and Criminal Defense Lawyers, our team is ready to protect your rights. If you’re facing charges, contact us today to schedule a free consultation with a Lexington criminal defense attorney.
