Actual Possession vs Constructive Possession

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

Rodriguez Law Group, Inc. March 18, 2022

How someone is charged for possession of a controlled substance, or other illegal contraband, can depend on a number of factors, including the type of “possession” occurring in that instance. This blog is going to focus on defining the difference between actual possession and constructive possession. Though there are differences between these two variations, being convicted of either one can mean serious legal ramifications.

Actual possession is exactly what it sounds like it is; this refers to a controlled substance (or whatever other illegal material in question) is found on the suspects actual person. So if police officer were to apprehend a suspect and find that they were actively holding onto that substance, that would be a case in which prosecutors can pursue the charge of “actual possession”.

In contrast, constructive possession refers to when a suspect did not have the contraband on themselves personally, but they could be found complicit for the presence of contraband in the domicile/location/vicinity. For example, if you are in a car that is pulled over and they find drugs in the glove compartment or you are at a house that is raided, you could potentially face this charge. Whether or not the drugs are yours and even if they aren't found on your personal property, you could still end up facing charges.

However, there is a different burden of proof with these two charges. Actual possession is generally much more clear cut; barring very non standard circumstances, if drugs are found in your clothes/directly on you, it is unlikely that they are someone else’s or at the very least that you would be unaware of their presence.

To convict you of constructive possession, however, prosecutors/law enforcement must prove that you knew the drugs were present, knew they were illegal and had some level of “control” over them. It is very worth noting that mere proximity to the drugs is usually not enough to convict someone in this type of case.

With solid legal counsel, you can generally pick apart the prosecutor's arguments and put up a strong defense in cases of constructive possession. It is much harder to craft a defense in cases of actual possession.

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