What is constructive possession?

Under Florida law, there are two different ways you can possess something. The first is known as actual possession. Examples of actual possession are having your phone in your pocket or a pen in your hand. We all typically think of actual possession as holding or carrying something. The second type of possession is called constructive possession.

What qualifies as constructive possession can get complicated.

Constructive possession happens when you know where the item is, and you can exercise “dominion and control” over that item. “Dominion and control” is the legal talk for “it’s yours.” For example, imagine that you and I are sitting across the table from each other, and there is a pen between us. The pen belongs to me, not to you. You can see the pen. You know it’s there, but it’s mine, and when you go to take it, I stop you. You do not have “dominion and control” over the pen. Make sense?

So how does constructive possession play out in criminal cases?

The most common scenario where constructive possession is at issue is drug possession cases. What happens when someone gets pulled over, and the police find some drugs in the center console? A lot hinges on whether or not you can establish that someone else had access to the vehicle. Often this is easily accomplished – you have a passenger in the vehicle. You can also do this by proving that car is titled in someone else’s name or by testifying about the other people that have used the vehicle.

If the drugs are not in plain view and you can establish that someone else had access, then the government can’t prove the possession case against you. In these situations, the government needs some independent proof that you were in constructive possession of those drugs. A confession is the most common way they do this, so be quiet and don’t say anything. Click here for a discussion on your right to remain silent.

I recently represented a client on appeal convicted of trafficking in methamphetamine. When the police entered the house to execute a search warrant, my client was in the hallway outside the bathroom. His girlfriend was asleep in a bedroom of a house owned by his mother and occupied by a cousin in high school. The police found marijuana, cocaine, paraphernalia, and methamphetamine inside the bedroom where his girlfriend was lying in bed. My client’s photograph was in the bedroom, along with pieces of mail addressed to him.

The client went to trial before the judge, and the trial judge found him guilty and sentenced him to seven years in prison. The appellate court agreed with me, reversed my client’s convictions, and ordered him released from prison. The appellate court found that the evidence the State presented (photo, mail) was not enough to show that (1) my client knew the drugs were there or that (2) they were his. There was no telling if the mail, photo, or bills, were placed where they were before the drugs arrived in the bedroom. A photo of him in his mother’s house was not unusual, and there was proof that other people had access to the bedroom the police said was his.

Constructive possession can be very difficult for the government to prove.

It can also be complicated to understand fully. If the State has charged you with possession of drugs, it is essential to contact an experienced attorney to handle your case.

Give us a call for a free consultation.