Criminal offenses often include “possession” among the elements necessary to prove the crime. While in many cases the issue of possession is straightforward, under other scenarios possession can become a grey area, or area of contention. Typically, that happens when the charges are based on the allegation that the defendant was in “constructive possession” of contraband or something that he or she should not have possessed. Understanding what “constructive possession” means may help you avoid being charged for a crime.
The issue of actual versus constructive possession occurs most often in drug cases, theft cases, and firearm violations. Under the eyes of the law, actual possession refers to direct, physical care, custody and control of the object in question. For example, if you are stopped by the police and ultimately searched upon which the officer encounters a bag of cocaine inside your pants pocket that constitutes actual possession of the marijuana because you had physical custody of the marijuana. Likewise, if you are arrested and the police find a handgun on your person that is actual possession of the firearm.
The grey area where constructive possession comes in occurs when you do not have actual possession of an item but the police allege that it was yours nonetheless. Consider the following scenarios:
- You are stopped while driving your car and the police search your vehicle. They encounter a bag of marijuana in the center console. Are you in possession of the marijuana?
- The police search your home and find stolen property in your bedroom. Are you in possession of the stolen property?
In both of those examples you were clearly not in actual possession of the items; however, the law tries to determine if you were in constructive possession by asking whether you had the intent to maintain dominion and control over the item. In both of the above examples, a good argument could be made that yes, you did have the intent to maintain dominion and control over the items because they were located within your reach and/or in an area that was clearly under your control. Consider, however, a few changes to the above scenarios and then ask the same question:
- You are stopped while riding as a passenger in someone else’s vehicle. The police find a bag of marijuana under the passenger seat where you are sitting. Is that constructive possession?
- The police search the home where you live with two other roommates and find a handgun under a cushion on the couch where you were sitting when the police arrived? Are you in possession of the handgun?
In the two final examples, the case for constructive possession gets harder to make because you were not the only person who had the ability to control the area where the items were located.
Only an experienced California criminal defense attorney can evaluate the specific facts and circumstances of your case. If you are charged with a crime based on actual or constructive possession in California, contact San Diego criminal defense attorney Domenic J. Lombardo for a free and confidential consultation.
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