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A lot of criminal charges have an element of possession. It could be possession of drugs, guns, or stolen goods, for example. The prosecutor must prove that you knowingly possessed something to get a conviction.
However, most people wrongfully assume that possession means that you must have something on your person. It could be physically holding a gun or getting caught with drugs in your pocket. While these situations also constitute possession, you can possess something even if it isn’t physically on you. This is called constructive possession.
Constructive possession is a type of legal possession rather than actual possession. If the government cannot prove that someone was in physical possession of the object, they can try to prove constructive possession instead.
There are two critical elements to constructive possession: knowledge and control. The prosecution must prove both elements to prove constructive possession.
The knowledge element is that someone is aware of the object and its illegality. They must know that the illegal object exists and where it is. For example, someone may be aware that there are drugs inside their house, even if they aren’t physically holding the drugs.
Control is a trickier element to prove. Control means that a person has the intent to exercise some level of control over the object. They could physically possess the item if they wanted. To continue with the previous example, a person with drugs in the house can go and get the drugs whenever.
The concept of constructive possession applies in any case where the prosecution must prove possession of an object. It can either be a felony or a misdemeanor. It is most commonly used in:
Possession is a critical element in each of the cases. If the prosecution cannot prove actual or constructive possession, then you cannot be convicted of the crime.
Sometimes tricky situations arise with constructive possession. For example, let’s say that two roommates both know that there are drugs in their shared house. Unlike actual possession, both people can constructively possess the same object.
Even though more than one person can constructively possess an object, these situations are more difficult to prove. That’s because both parties may argue that they lacked knowledge of the item. Essentially, they can shift blame onto each other, creating reasonable doubt about possession.
To prove constructive possession, the prosecution will produce evidence of your knowledge and control over the object. It is critical to remember that both elements are required. Neither one is enough onits own.
The evidence that proves constructive possession could include:
Ultimately, the prosecutor can use any admissible evidence to show constructive possession.
It’s harder to prove constructive possession than actual possession. Therefore, you may have defenses available in your case.
You can argue that you did not know of an object’s existence. For example, you didn’t know that there were drugs in the trunk of the car. However, a lack of knowledge can go even further. Sometimes defendants argue that they didn’t know about the illegality of the item.
Receiving stolen goods is a great example. Perhaps you purchased a stolen T.V. from a friend. If you didn’t know that the T.V. was stolen, then you can’t be convicted.
You can also argue that you did not have control over an object. You may know about a drug’s existence or that something was stolen, but if you don’t have any control over it, you cannot constructively possess it.
For example, if the police find drugs in your friend’s house, you could argue that you don’t have any control over it. You might know that your friend has drugs there, but they aren’t in your domain, and therefore, you aren’t in constructive possession.
Another common defense to constructive possession is mistaken identity.
Perhaps the prosecution has mistakenly identified you as the person who possessed the object. This is common in cases where there is a lineup, eyewitness identification, or poor video or photographic evidence.
Constitutional violations are common in constructive possession cases. That’s because in most constructive possession cases the police have committed a search. Perhaps they searched your car, your person, or your house.
When the police search, certain constitutional protections apply. These protections prevent the police from randomly searching people or their homes. During a motion to suppress, you can argue that the police had a defective warrant or lacked probable cause to commit a search.
If you win, then the evidence may be excluded. In a possession case, this often results in dismissal due to insufficient evidence.
In every criminal case, the prosecutor needs proof beyond a reasonable doubt, which applies to each element. If the prosecutor cannot prove each element beyond a reasonable doubt, there is insufficient evidence to obtain a conviction.
A defense attorney can argue that there is reasonable doubt in your case. More specifically, the prosecutor has insufficient evidence of the elements of constructive possession. If they can’t prove constructive possession, then you will be found not guilty, and your case will be dismissed.
If the government argues constructive possession in your case, you may want to consult with a Phoenix criminal defense lawyer. You do not want to miss out on the opportunity to fully defend yourself against the allegations. Contact Orent Law Offices at (480) 656-7301 to schedule a free consultation today.
