What is Constructive Possession?

Constructive Possession

Constructive possession is the legal possession of an object that is not in the person’s direct physical control. Like other “constructive” meanings, constructive possession legally functions as actual possession in a variety of ways.

In criminal law, establishing constructive possession is often done to further prosecutions for possession crimes, such as possession of illegal drugs.

In property law, establishing constructive possession grants the owner the right to obtain physical control and/or a variety of rights over someone else’s physical control of that property.

Generally, for a court to find that a person had constructive possession of an object, the person must have had knowledge of the object, and as well as the ability to control it.

For example, someone with keys to a safe deposit box may have constructive possession to the contents of that box.

As seen in U.S. v. Bailey, where mere existence of a firearm in a borrowed car could not uphold constructive possession, constructive possession cannot be established on the basis of ability to control alone.

Possession

Possession means the ownership, control, or occupancy of any object, asset, or property, by a person.

Cases such as this one from Missouri, explain that “possession is defined as the detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name.”

The two most common types of possession are:

Actual possession, also called possession in fact, is used to describe immediate physical contact. This case from New York, explains that “actual possession is what most of us think of as possession—that is, having physical custody or control of an object.”

This case from the Eleventh Circuit, explains that constructive possession, also called possession in law, exists when a person has knowledge of an object plus the ability to control the object, even when the person has no physical contact with it. Constructive possession is often used in criminal cases.

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