In the eyes of the law, possession of guns or drugs can be categorized in two distinct ways: actual and constructive. The difference between them is crucial, particularly in criminal cases, and hinges on the concept of control.

Actual Possession

Actual possession is the most straightforward form. It means having direct, physical control over an object. If you are holding an item in your hand, it is in your pocket, or it is in a bag you are carrying, you have actual possession of it. There is no ambiguity; the object is on your person.

Constructive Possession

Constructive possession, on the other hand, is a legal doctrine that applies when a person does not have direct physical control over an item but has the knowledge of the item's presence and the intent and ability to maintain control over it.This is where the distinction becomes more nuanced. Proximity to an object alone is not enough to establish constructive possession. For instance, simply being in a car where illegal drugs are found does not automatically mean every passenger is in constructive possession of them.

Proving Constructive Possession

To prove constructive possession, the prosecution must demonstrate something more: that the individual knew the item was there and had the intent to exercise dominion and control over it. This could be inferred from the circumstances, such as if the drugs are found in a person's home or a locked glove compartment to which they have the key. In these scenarios, even though the person is not physically holding the contraband, their relationship to the location and their ability to control the item establishes constructive possession. Ultimately, it is the intent and ability to control, not just mere presence, that forms the foundation of this legal concept.

Author: Brian J. Boeheim

Brought to you by: Boeheim Freeman Law - Tulsa, Oklahoma - 918-884-7791 - onyourworstday.com