What Is Constructive Possession?

By Brett Snider, Esq. on December 18, 2014 | Last updated on March 21, 2019

Constructive possession is often thrown around in criminal cases where a person is charged with the illegal possession of something that wasn't in his or her actual possession.

The distinction can be hard to ferret out at times, but constructive possession is, in many cases, just as effective as actual possession in obtaining a conviction.

So what are some examples of constructive possession?

Holding the Key to Possession

One of the archetypal examples of constructive possession is when a suspect has actual possession of a key to a lockbox or safe, and within that container is the alleged contraband (drugs, stolen property, guns, etc.). Since the person who holds the key has the exclusive ability to access and use what lies in a locked container, the law treats the keyholder as if he or she had the lockbox's contents in his or her pocket.

The lockbox metaphor doesn't have to be so literal. You can constructively possess a car or house by knowingly possessing the keys to either one. Stashing stolen merchandise or drugs in your car or home won't stop prosecutors from saying that you possessed them.

Just Holding It for a Friend?

It's also possible that you could be found in constructive possession of an illegal item even if it was found on another person. If a prosecutor can prove that you gave illegal contraband to another person to hold for you, and that you still exercised control over that contraband and intended to control it, you might still be guilty of possession.

Put in more concrete terms, you may still be found to have constructively possessed marijuana if you stuffed a baggie of weed in a friend's backpack.

Constructive possession is a common law concept, but it is often defined more specifically by state law or local case law. To find out more about constructive possession and your specific case, contact a criminal defense attorney in your area.

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