What is Constructive Possession? Legal Definition and Examples

In criminal law, possession is a key concept that comes up frequently in drug and weapons offenses. However, many people are surprised to learn that you don’t necessarily have to be physically holding an illegal item to be charged with possessing it. This is due to a legal principle known as constructive possession.

Understanding constructive possession is critical if you or a loved one is facing charges involving illegal substances or weapons. In this article, we’ll break down what constructive possession means, how it differs from actual possession, and the factors that can lead to a conviction in Texas.

Elements of Constructive Possession

Constructive possession refers to situations where a person does not have direct physical control over an object, but they have the power and intent to control it. There are three main components:

Dominion and Control

To establish constructive possession, prosecutors must show that the defendant had dominion and control over the illegal item or the property where it was found. Some examples of dominion and control include:

• Ownership or occupancy of the premises, such as a home or vehicle
• Having keys or unrestricted access to the location
• Ability to direct what is done with the property or item

Knowledge

The accused must have known that the illegal substance or item was present in a location under their control. Knowledge can be proven through:

• Statements or actions indicating awareness of the item
• Attempts to hide or dispose of the object
• Proximity to the item in plain view

Access and Ability to Control

Finally, constructive possession requires that the person had the ability to access and exert control over the illegal object at any time, even if they weren’t directly interacting with it when law enforcement intervened.

Factors Courts Consider in Constructive Possession Cases

In determining whether someone had constructive possession, Texas courts evaluate the totality of the circumstances. Some key considerations include:

• The defendant’s proximity to the illegal item when it was found
• Whether the accused had sole or joint control over the location
• Any incriminating statements or conduct
• Attempts to conceal or destroy evidence
• The presence of drug paraphernalia suggesting involvement in drug activity
• The quantity of drugs or nature of the item in question

For example, if police find drugs in the trunk of a car after pulling someone over, and that person was the only occupant, this would likely be compelling evidence of constructive possession.

On the other hand, if drugs were found in a shared apartment with multiple residents, it may be more challenging to prove a particular person’s constructive possession without additional evidence.

Constructive Possession vs Actual Possession

Many people are more familiar with the concept of actual possession, which means the illegal item is physically on your person, such as in your pocket or in your hand.

Constructive possession is a more expansive legal principle. It allows law enforcement to arrest and prosecutors to charge someone with possession even if the illegal object wasn’t in their immediate physical custody.

Penalties for Constructive Possession Convictions

The consequences of a constructive possession conviction can be severe, especially for offenses involving controlled substances or illegal weapons.

In drug cases, the penalties are determined by the type and quantity of the substance, based on the “Penalty Groups” outlined in the Texas Controlled Substances Act. Depending on the amount, a possession charge can be a misdemeanor or felony, with potential sentences ranging from 180 days in jail to decades in prison and fines of $10,000 or more.

Beyond the criminal penalties, a conviction for constructive possession can have lasting collateral consequences, such as difficulties finding employment, loss of professional licenses, and ineligibility for certain government programs.

Defenses to Constructive Possession Charges

If you are charged with constructive possession, several defenses may be available depending on the circumstances:

• Lack of knowledge that the illegal item was present
• No ability to access or control the location where the object was found
• Mere proximity to the item without any other incriminating factors
• The location was accessible to multiple people, and there’s no evidence singling out the defendant
• The defendant was only temporarily present in the place where the item was located
• The item was planted by someone else or belonged to another person

An experienced Texas criminal defense lawyer can assess the strengths and weaknesses of your case and develop the most effective strategy for challenging a constructive possession charge.

Real-World Examples of Constructive Possession

To better understand how constructive possession works in practice, let’s look at a few examples:

Drugs Found in Vehicle After Traffic Stop

Imagine police pulling over a car for speeding. The driver is the only person in the vehicle. During a search, officers find a bag of illegal pills in the center console.

Even though the driver didn’t have the drugs on their person, they could be convicted of constructive possession based on their control over the car and access to the console while driving.

Firearm Discovered During Search of Home

Police execute a search warrant at a house based on a tip about drug activity. During the search, they find a gun in the bedroom closet. The home is owned and occupied solely by the defendant.

Although the defendant didn’t have physical possession of the firearm when the police arrived, the fact that it was in their bedroom closet would likely be sufficient to establish dominion and control over the weapon.

Drugs in Shared Apartment

Contrast the previous examples with a scenario where police search an apartment with three roommates. In the living room, officers find a small bag of cocaine on the coffee table.

Without additional evidence that a specific roommate knew about and had control over the drugs, it would be difficult to convict any one of them of constructive possession. Mere proximity to the drugs in a shared living space likely wouldn’t be enough on its own.

The Bottom Line on Constructive Possession

Constructive possession is a powerful tool that enables law enforcement to bring serious drug and weapons charges even when a person doesn’t have the item in their physical custody.

Whether someone faces conviction for constructive possession depends on factors like their knowledge of the item, ability to control it or the place where it was found, efforts to hide evidence, the quantity discovered, and whether they had sole or joint access.

Because the penalties for constructive possession can be severe, including lengthy prison sentences and steep fines, it’s essential to have an aggressive and knowledgeable defense attorney in your corner if you’re facing these charges. Choosing the right lawyer can make the difference between clearing your name and spending years behind bars.

If you or a loved one has been arrested for constructive possession of drugs or weapons in Frisco, Sherman, or the surrounding areas, the criminal defense team at Whalen Law Office is ready to help. We have a deep understanding of Texas law relating to possession offenses and a track record of fighting for our clients.

Contact us today to schedule a consultation and case review. The sooner you get legal guidance, the better protected your rights and future will be.