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What is constructive and actual possession?

You know that being in possession of drugs is illegal. You’ve seen the pat-down scenes on T.V. The cop usually pulls the substance from the person’s pocket. It’s always cut-and-dry on the screen. It seems simple enough. You have to have the substance on your persons to be charged with possession, right? The answer is not as straightforward as you may think.

When it comes to controlled substances, there are two types of possession that people should be aware of:

  1. Actual possession
  2. Constructive possession

What is actual possession?

Actual possession is more reminiscent to what you see in the movies. A person has actual possession when contraband is found on their person. They may have it in their pocket or just can be simply holding it in their hand. The person in question has exclusive access to the substance.

What is constructive possession?

Constructive possession is a little more complicated. To have constructive possession means that the person does not have actual custody of the substance, but does have the ability to control the substance. This scenario often happens when multiple people have equal access to the substance.

What does this mean?

If a person has exclusive control over the place where the substance is found, while it is not on their person, they may be charged with constructive possession. For instance, if the substance is found in the closet of a homeowner, it is possible that constructive possession could be established.

Now think about another scenario. Say that a car full of people gets pulled over and a controlled substance is found in the vehicle. Exclusive possession of the place where the substance is found may not be easy to establish. In this case, other incriminating circumstances may need to be shown to constitute sufficient evidence of constructive possession. It may be possible that all passengers in the vehicle could be charged with constructive possession under specific circumstances. These instances usually don’t play out correctly in the movies.

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