What Is Constructive Possession?

Constructive Possession

Many criminal offenses include "possession" as one of the elements of the crime. Drug crimes, for example, often require the State of New York to show that the defendant had possession of the drugs at the time of the arrest. Possession of a firearm is another criminal offense that requires the prosecution to prove the defendant was in possession of the item in question. Though it may seem simple to define "possession", the law actually makes it somewhat complicated because the law allows for both actual and constructive possession. If you have been charged with a criminal offense that includes a possession element it is imperative that you understand what the law means by constructive possession.

From both a law enforcement and prosecutorial perspective it is preferable to find a defendant in actual possession of the contraband in question. "Actual possession" is defined as having immediate and direct physical possession over the item in question. By way of illustration, assume that a law enforcement officer pulls you over while you are driving down the street in your vehicle. The officer asks you to get out of the vehicle and proceeds a "pat down" search. If the officer finds a bag of cocaine in your jacket pocket that would constitute "actual possession" of the contraband.

Contraband, however, is not always so conveniently located on a suspect. Often, drugs, firearms, or other contraband is found near a suspect but not actually on the suspect. Many times, a suspect may toss or discard the contraband to avoid it being found on his person or property. For situations such as this the law allows the prosecution to use a constructive possession argument. Although a universally accepted definition for the concept of constructive possession remains elusive, the following definition is widely used:

"Constructive possession exists when the defendant had knowledge of the item in question and that he/she had the intent to maintain dominion and control over the item."

In the previous example, assume you were driving your vehicle but the cocaine was found under the driver's seat instead of in your jacket pocket. That would make a strong constructive possession argument for the prosecution. Changing the facts just a little, however, can weaken the argument. If the vehicle belonged to a friend, there were passengers in the vehicle, or the bag was found under the back seat, the strength of the constructive possession argument weakens.

If you have been charged with a crime that requires the State of New York to prove constructive possession, consult with an experienced New York criminal defense attorney as soon as possible to discuss your defense.  Click here for a free case review.

You have rights and should use them. You are entitled to have an attorney present and represent you throughout the proceedings to even the playing field; however, you must exercise your right to counsel by telling the prosecutor or police officer that you do not want to answer any questions until you have an attorney with you. If you do not ask, they will not get one and they will keep questioning you until they get something.

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