What is Constructive Possession?

When you or someone you love is arrested and charged with committing a crime, events happen faster than you can prepare for them. And one of the most unsettling parts of the process for an accused person is not understanding how the law applies to their individual case. We see this often when people are charged with “possession” of an illegal substance or object.

Possession seems like a familiar and simple concept. But the criminal law recognizes a theory known as “constructive possession.” Our attorneys explain what constructive possession is, how it is applied to different case facts, and how an experienced criminal defense lawyer can challenge the evidence and defeat the prosecution’s charges.

Legal Definition of “Possession” in Florida

The criminal law in the United States operates with the basic requirement that words have specific meanings that we all agree with. You might have heard over the years that one or another criminal statute was held to be “void for vagueness,” because the wording was not clear enough to put everyone on notice about exactly what conduct was illegal.

In Florida, there are two ways for the prosecution to prove a defendant’s criminal “possession” of some article:

  • Actual (Physical) Possession
  • Constructive Possession

Actual Possession — Actual or physical possession is what we usually think of as possession. This is when a person knows the nature of the item and has it in their hand, on their person (like in a pocket), or even within their reach where they can immediately pick it up and use it.

Constructive Possession — Constructive possession of an item occurs when someone has knowledge of the object and has control or dominion of it, wherever it is. Whatever the item is, whether it’s drugs, a gun, stolen property, or illegal images stored on a computer, having the item within your control can constitute constructive possession even if the object is in another building or locked in a safety deposit box at a local bank.

The legal concept of constructive possession can also apply when two or more people have joint control over the illegal material. Constructive possession is no less criminal than physical possession. In fact, legal fiction was developed to be able to hold criminally responsible those people who had the power to control an illegal substance but did not have it in their physical possession.


Constructive Possession of a Controlled Substance: Let’s say a buyer arranges to have a drug supplier deliver three grams of cocaine to the buyer’s parked car outside the buyer’s apartment building. The police monitored the conversation. When the dealer places the drugs inside the buyer’s car, as arranged, the buyer is then in constructive possession of the drugs even though the buyer is still upstairs in his apartment.

Constructive Possession of a Firearm by a Felon:  Another example of the theory of constructive possession is when a convicted felon knowingly possesses a firearm in violation of Florida law. If a felon carries it in their pocket or keeps it on a table a few inches from their hand, the prosecution could prove physical possession. But if the felon stored the gun in a locked storage unit two miles away at a self-storage facility, then the felon’s constructive possession of the gun could lead to a conviction.

Before the 1920s, only actual possession of an item could be the basis of a criminal conviction. When alcohol was banned during Prohibition, the courts began to expand the meaning of possession to include circumstances where a person merely had knowledge and control of the banned object, even if the illegal material was located somewhere else in the jurisdiction.[1] Under this new view, a person could be convicted for illegally possessing something even though they merely had “constructive possession.”

Defenses to a Constructive Possession Charge:

Prosecutors and police need to present evidence sufficient to prove beyond a reasonable doubt that a defendant had “constructive possession” of the illegal item. They must prove the defendant knew of the object and had the power to exercise control over it. Experience criminal defense lawyers raise challenges to the prosecution’s evidence, using these and other defenses to win their clients’ acquittal, reduce the charges to a lower level of severity, or get the case dismissed outright.

No Knowledge of Item’s Presence:

  • Defendant did not know the item was in the location.
  • Borrowed car from friend without knowing contents of trunk
  • Defendant merely a passenger in a car where another person possessed item,
  • Shared apartment with roommate, no knowledge of contents of roommate’s room
  • No exclusive control over the location where contraband found, open and accessible to others
  • items found in lover’s apartment, defendant not a resident and no independent evidence defendant knew or had control over the items.
  • Defendant had no knowledge of the object’s nature.
    • defendant took possession of a box without knowing its contents,
    • defendant was misled as so nature of the material
    • defendant downloaded a computer file without knowing of illegal nature of images.

No Control Over Location or Contraband:

  • Defendant had no power or control over the item.
    • defendant did not have the ability to control the object
    • object was inaccessible to the defendant
    • defendant loaned their car to another person, had no control over events thereafter.

Illegal Search or Seizure by Police – Suppress Evidence:

  • Contraband found is inadmissible because the police violated the Fourth Amendment ban on unreasonable searches and seizures.
  • Search warrant affidavit has incomplete, misleading, or false information (Franks hearing)
  • Item seized after warrantless search not falling within exception to warrant requirement; (not in plain view, no hot pursuit, no exigency for public safety)

Get Experienced Tampa Criminal Defense Lawyers for Your Criminal Charges

Stechschulte Nell Attorneys at Law has been representing people accused of criminal possession of various materials for many years. As a former federal prosecutor and an experienced and aggressive criminal defense lawyer, Ben Stechschulte knows the law and uses it to protect his client’s rights and prevent improper and unfair prosecutions.

Get the best defense for yourself or for your family member. Contact Stechschulte Nell today; 813-280-1244 or visit tpatrialattorneys.com

[1] People v. Vander Heide, 211 Mich. 1, 178 N.W. 78 (1920).


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