Actual Possession v. Constructive Possession

February 26, 2015

I find the most difficult part of possession cases (usually possession of narcotics or firearms) is explaining to my clients how they can be charged with a possession crime when “the drugs were in my friend’s pocket”, “the gun was under the driver’s seat, not mine”, etc. This explanation comes down to a brief lesson in the different types of possession-actual and constructive.

Actual Possession Defined

The first, and most common, type of possession is “actual possession”. If you knowingly have direct physical control over a thing, at a given time, then you are in actual possession of that thing (OUJI-CR 6-11). To do something knowingly is to be aware of the existence of the facts that cause the act or omission to be criminal in nature (OUJI-CR 6-16). When actual possession is accomplished by one person alone, that person is said to have sole possession of a thing. When actual possession is accomplished by two or more people, those people are said to have joint possession of a thing.

A simple example of actual possession is someone holding a handgun. Absent some very unique circumstances, that person is aware that he/she has a gun in his/her hand. That person also has direct physical control over the handgun, because he/she can exert dominion and control over the handgun by shooting it, pointing it, throwing it, etc.

Constructive Possession Defined

Constructive possession is the type of possession that causes the most confusion. If you, while not in actual possession, knowingly have the power and intention at a given time to exercise dominion and control over a thing, then you are in constructive possession of that thing (OUJI-CR 6-11). Constructive possession may be sole or joint.

A good example of constructive possession is a person driving in a car with a bag of methamphetamine sitting in the passenger seat. While the person does not have direct physical control over the bag of meth, he/she knows the meth is in the passenger seat. The person also has the power and the intention (which we can infer from the circumstances) to exercise dominion and control over the methamphetamine.

The most common scenario of joint constructive possession is the car full of friends who have illegal narcotics somewhere in the vehicle. Often, each person in the car where the drugs were found will be charged with possession of a controlled dangerous substance.

I hope this brief explanation of actual and constructive possession answers some of the questions you may have regarding possession crimes. If you have questions regarding this topic, please feel free to post them. As always, if you have a suggestion for my next topic, please let me know!