Many criminal offenses in San Diego include “possession” of an item as an element of the offense. If you were arrested and charged with one of these offenses and you didn’t actually have possession of the contraband, or item, you may think that you are in the clear. Not necessarily so. The law allows for two types of possession – actual and constructive. Therefore, you could still be convicted even if you didn’t actually possess the item in question.
The two most common types of cases where constructive possession becomes an issue are possession of drugs and possession of a firearm. Of course, if you have a prescription for the drugs or a permit for the firearm that may be a defense to possession of either; however, assuming that you do not, the State of California must prove that you were in “possession” of the drugs or firearm. To do so the prosecutor can show that you had actual or constructive possession.
Actual possession in San Diego means that you had direct, physical possession of the contraband. If, for example, you were stopped on the street by a law enforcement officer who conducted a “pat down” search and a firearm or a baggie of cocaine was found in your coat pocket that is actual possession. Constructive possession in San Diego, on the other hand, alleges that even though you did not have actual possession of the contraband it was yours.
Though there are various definitions of the term “constructive possession”, one common definition requires the State to prove that you had “knowledge of the item as well as the intent to maintain dominion and control over the contraband”. By way of illustration, imagine that you are the passenger in a vehicle that is stopped by the police. Underneath your seat the police find a firearm and a baggie of cocaine. The officer could charge you with possession of both under the theory that you knew they were there and that you have the ability and intention to control them. Interestingly, the officer could also charge the driver of the vehicle under the same argument. In fact, anyone in the vehicle could be charged with possession of the contraband.
Just because the State of California charges you with constructive possession, of course, doesn’t mean they can convict you of the charges. An experienced California criminal defense attorney may be able to successfully argue that the State has not proven that you possessed the contraband.
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