There are several crimes that involve possessing something that someone is prohibited from possessing. This includes but is not limited to possession of firearm by felon, drug possession, and possession of child pornography. What does it mean to have something in your possession? Can I be in possession of something if I did not have it in my hand? These are the questions that we hope to answer in this blog. Like all our blogs, this is intended for general informational purposes only and not intended as a substitute for the advice and counsel of a criminal defense attorney.

What is possession?

To put thing simply, possession is having something within your control.  Unfortunately, situations in a legal setting are rarely simple. Black’s law dictionary defines possession as “the state of having, owning or controlling something”.

In the context of criminal law, possession is further broken down into two separate forms: 1) actual possession, and 2) constructive possession. Actual possession is a simple concept; it involves having something in your hands or otherwise on your person (in your pocket, in your purse, etc.…). Constructive possession is where people tend to get confused if they are not familiar with it.

Constructive possession

When something is not in your hands or on your person, the government may intend to prove that you had constructive possession of that item. Constructive possession is the knowledge of an item along with the power and intent to control its use or disposition.

Common examples of where constructive possession might apply:

• You are in a vehicle and contraband is in the vehicle with you even though it is not in your actual possession.
• You live in a house and contraband is in that house that is not in your actual possession.
• You are at work and contraband is at your work station that is not in your actual possession.

Defending a possession case

When someone is charged with possession, in a criminal trial, though the defendant has the presumption of innocence, strategically the defense attorney has to argue against possession.

Arguing against actual possession would involve some argument about whether the item was on the defendant’s person, and whether or not he knew about it.

• Example – though something was in the defendant’s pocket in the sweater he was wearing, it may be possible to make the argument that he was wearing someone else’s sweater and he had no idea what was in the pocket of that sweater.

Arguing against constructive possession would involve arguing against knowledge or intent to control the use or disposition of an item.

• Example – Though the defendant was in the driver’s side of the vehicle and a gun was found in the trunk of the car, it may be possible to show he had no knowledge that the gun was there and no intent to ever use it.

Like many issues in criminal law, possession, especially constructive possession may be complicated to deal with. If you have been charged with a crime, you should consult a lawyer as soon as possible.