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What is Contructive Possession?

Constructive possession of carrying pistol without a licenseWhat is Constructive possession over evidence in a case?   Possession may be joint, with more than one individual sharing control over a single object.  So lets say you are charged with a gun but you did not have physical possession at the time the police stopped you.  The likely scenario is where you are driving in a car with multiple people and police make a traffic stop where a gun is recovered.  So the Question becomes how can the prosecutor charge me when I did not have physical possession (on your body)?  Yes, they can under a theory called constructive possession.    Constructive possession means:

  • knew of the presence of the contraband;
  • had the power to exercise dominion and control over it;
  • intended to exercise dominion

Proximity to the Item

Another thing to remember when answering what is Constructive possession is that proximity to the evidence  or presence at the scene where it is found, or association with one in possession, without more, is insufficient to establish dominion and control.  Although proximity or association is by itself insufficient, when coupled with evidence linking the accused to an ongoing criminal operation involving possession, the requisite knowledge and dominion and control may be established.

Association with Other is not sufficient to establish constructive possession

The Association with others is insufficient to prove constructive possession.   Mere presence next to the item is also insufficient even if you are associated with the other individuals.  Watch our other video on Constructive possession.