Constructive possession is a legal concept that describes a circumstance where an individual has actual control an item of property without actually having physical control of the same item. For example, if your car is parked in your driveway, you have physical possession of it, but someone with a key has “constructive” possession because they can take the car physically and without your further consent. Likewise, if someone steals your credit card number, the physical card has never left your possession, but the person with the number has constructive possession and probably could be prosecuted for the theft of your credit card information.

Under the law in California, a person with the constructive possession of an item stands in the same legal position as a person with the actual physical possession of the item. In criminal law, the legal concept of constructive possession comes into play primarily in drug cases and in weapons cases. In these cases, there is often a dispute over who possessed and/or who controlled the drugs or firearms in question. California criminal defense attorney James R. Tedford II, of Tedford Law, says simply that “Constructive possession means that a weapon or drugs were immediately accessible to the defendant and in a place that was under his control.”

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WHAT IS CONSTRUCTIVE POSSESSION IN A CRIMINAL DRUG CASE?

Constructive possession of an illegal drug exists when a suspect does not have actual physical possession of the drug but has both a knowledge of the drug’s presence on or about his or her property and the ability to maintain control over the illegal drugs. Two or more persons may constructively possess the same illegal drugs. Two or more people living in the same residence with one bag of marijuana, for example, can constructively possess the bag even if only one person paid for and has physical possession of it.

Constructive possession is legally the equivalent of actual possession, but merely being in the vicinity of a drug does not necessarily constitute constructive possession. To be convicted of possessing illegal drugs through constructive possession, a defendant must have had actual knowledge of the drug’s presence. How does the law determine what is and what is not “knowledge” constituting constructive possession in a drug case?

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Generally speaking, the knowledge that constitutes constructive possession in a drug case has two elements. First, a defendant must “know” that illegal drugs are on or adjacent to his or her property. Being directly informed of the presence of the drugs or seeing them is not necessarily required if a defendant’s knowledge could be gained by reasonable inference from the facts, the circumstances, and the behavior of others. Secondly, the defendant had to know – or should have known – that the drugs were illegal.

WHAT CONSTITUTES THE ABILITY TO MAINTAIN CONTROL?

In drug and weapons cases where constructive possession is alleged, the legal definition of the phrase “the ability to maintain dominion and control” varies from state to state – and sometimes from courtroom to courtroom.  Generally, however, a suspect with the ability to maintain dominion and control knowingly has the power, either directly or indirectly, to take possession of illegal drugs. If a suspect does not physically possess the drugs, to be in “constructive” possession, he or she must have the ability to obtain physical possession of the drugs.

If a suspect is the only resident of a home or is the only occupant of a vehicle where illegal drugs are found, that is usually enough to constitute constructive possession. When a suspect is not the exclusive resident of a home or occupant in a vehicle, a prosecutor will need additional evidence of the suspect’s knowledge of and control over any illegal drugs in order to prove constructive possession. That evidence might include:

  • The drugs were found with the suspect’s personal items or in his or her bedroom.
  • The drugs were located where everyone could see them.
  • In a car, drugs were found directly under the suspect’s seat.

California criminal defense attorney and legal author Joseph Tully explains how constructive possession is applied in California drug cases: “Constructive possession law in California, like most California laws, is designed to get people found guilty when they’re accused of crimes. In order to be found guilty of illegal possession of something, typically drugs or guns, it doesn’t need to be yours AND you don’t need to be in possession of it. You merely need to be able to have the opportunity to possess or control something. So, if I leave a CD in your car, it’s my CD, you don’t have an interest in playing it, but you could. You COULD move it to the bag seat, put it in your glove compartment, you could take it out of the case and play it.”

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Attorney Tully adds, “So if it’s in your car and you have the opportunity to control it then you could be found guilty of ‘possession’ in California. The law is really broad in this area. The other side of the scale is that mere presence alone is insufficient for a guilty verdict. So on the one hand if you’re in a room and you’re a totally straight person but 19 of your friends are doing drugs, but if all you’re doing is standing in the room talking with them while they do drugs then you won’t be found guilty. Bottom line: at one end of the spectrum, mere presence alone is not enough to get you found in possession on the other hand the opportunity to control something can be enough to find you ‘in possession’ under California law.”

In Southern California, if you are charged with the constructive possession of a controlled substance or with any other drug crime or related crime, speak immediately with an experienced Orange County criminal defense attorney. A similar legal principle of constructive possession can apply in cases involving firearms, so you will also need to contact an Orange County criminal defense attorney if you are accused of any firearms violation in southern California.

HOW IS THE CONSTRUCTIVE POSSESSION OF FIREARMS DEFINED?

In a general sense, the possession of a firearm by anyone but the registered owner could be interpreted as an illegal transfer. However, in a firearms case, constructive possession is not necessarily limited to someone who physically possesses a weapon legally registered to someone else. Constructive possession exists whenever someone can access or control firearms apart from the presence, knowledge, or supervision of the registered legal owner.

A criminal conviction for an illegal transfer of firearms that are covered by the National Firearms Act (NFA) is potentially punishable by a prison term, thousands of dollars in fines, and loss of the right to own or possess firearms in the future. But an illegal transfer is not necessary for constructive possession of a firearm to take place – in fact, it happens all the time. If a family member drives your car with a weapon in the trunk or has the combination to your gun safe, that’s constructive possession. If you have ever gone on a hunting weekend with friends and known where one another’s firearms were, that’s also constructive possession.

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If you understand constructive possession, you’ll mitigate the legal risks to your family, and you’ll know the importance of keeping secure any firearms that you own. Some may even want to create a “gun trust” with an attorney’s help. Like any other trust, the people named in the trust may have possession of the property in the trust. Thus, no transfer takes place when people in the trust have access to the firearms in the trust.

A gun trust is a step that gun owners should consider for family members and even close friends, especially at a time when many gun owners are concerned about what they perceive as the increasingly aggressive enforcement of gun laws. A gun trust can also function as an estate plan for your firearms, and it is the only legal way to convey property after your death that avoids a public court record.

Constructive possession is an evolving legal principle in California and in every other state. Anyone arrested and accused of the illegal constructive possession of any drugs or firearms immediately needs to seek the advice of a Los Angeles drug crimes attorney who can defend your rights and explain how the principle of constructive possession may apply in your own particular criminal case.