ACTUAL VS.

CONSTRUCTIVE POSSESSION
Understand the Meaning of the Word Possession, the Differences Between Actual and Constructive Possession and Your Defense When Youre Charged in California

DOMENIC J LOMBARDO
SAN DIEGO CRIMINAL DEFENSE LAWYER

Many criminal offenses are offenses that charge an individual with illegally possessing something. The something in question could be a variety of things such as a controlled substance, a firearm, or child pornography. For the State of California to convict on charges such as these they typically must prove that the individual was in possession of the contraband. Possession, however, can be either actual or constructive. While actual possession of something is usually fairly easy to establish, constructive possession can be much more difficult to prove.

POSSESSION CRIMES
When you are charged with a crime the prosecution has the burden of proving that you are guilty of that crime beyond a reasonable doubt. To do that, the prosecutor must prove each element of the crime for which you have been charged. The elements of a crime differ depending on the offense. In some crimes, possession of something is a primary element of the crime. Some examples of possession crimes in California include:

(c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. California Health & Safety Code Section 11357 (emphasis added) Any person who has a conviction for any misdemeanor listed in Penal Code section 12021(c)(1) or for any felony, or is addicted to the use of any narcotic drug, or has been held involuntarily as a danger to self or others pursuant to Welfare and Institutions Code Section 8103 is prohibited from buying, owning, or possessing firearms. California Penal Code Sections 12021 and 12021.1 (emphasis added)

In each of the above examples an individual can be convicted and potentially sentenced to jail or prison for possessing the item in question. For this reason, it is important to understand what is meant by the word possession.

ACTUAL POSSESSION DEFINED

Actual possession is easy enough to define. If you have actual possession

that means you have immediate and direct physical control over the property or item in question. If you are searched by the police and you have a firearm in a holster on your person then you have actual possession over the firearm.

DEFINING CONSTRUCTIVE POSSESSION

Because suspected criminals did not always conveniently have actual possession over contraband, the law had to develop another way of determining when someone was in possession of items for purposes of a

criminal prosecution. The concept of constructive possession was developed to covers situations where actual possession could not be proven. Defining what constructive possession means, however, has proven to be a challenge over the years. The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). Typically, to be found guilty of possessing something illegal the state must prove that you had knowledge of the item in question and that you had the intent to maintain dominion and control over the item. Broken down, the state must show knowledge and intent to control the item.

HOW DOES THE STATE PROVE CONSTRUCTIVE POSSESSION?

To illustrate the legal issues surrounding the definition of possession, consider the following scenarios and ask yourself if the individual involved possessed the controlled substance. 1. Defendant is at his own home where he lives by himself when the police execute a search warrant. The police find a bag with cocaine in the bag on the nightstand next to the defendants bed. 2. Defendant is at home where he lives with three roommates when police execute a search warrant. Police find a bag with cocaine in it on a nightstand in a room that defendant shares with a roommate but the nightstand is next to defendants bed. 3. Defendant is the only person home in a home that he shares with three roommates when police execute a search warrant. Police find a bag of cocaine on a table in the living room that is a common area shared by all residents of the house. Defendant though was the only person home when police arrived. 4. Defendant is at home along with his three roommates when police execute a search warrant. Police find a bag of cocaine on a table in the living room where defendant and two of the roommates were at when the police arrived.

In none of the above examples was the defendant in actual possession of the cocaine. The issue then becomes whether or not the defendant was in constructive possession of the contraband. As you should be able to see, with each successive scenario is gets a bit less clear if the defendant possessed the cocaine found in the bag if we use the knowledge of the item in question and that you had the intent to maintain dominion and control over the item definition of constructive possession. The courts have tried to shed light on the subject over the years. For example: [P]ossession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. (People v. Williams (1971) 5 Cal.3d 211, 215.) Constructive possession occurs when the accused maintains control or a right to control the contraband. (Ibid.) The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Ibid.) However, proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession. (People v. Redrick (1961) 55 Cal.2d 282, 285.) What does all of that mean if you are charged with constructive possession of something illegal? While each case provides a unique set of facts and circumstances, it essentially means that the prosecution will need to prove two important things: 1. That you knew about the contraband. 2. That you intended to control the contraband. Either one without the other should not be sufficient to convict you. For example, if you knew that a roommate had a controlled substance in the home you shared but you had no intention of using it or selling it then you have a defense.

Because the legal issues involved in a constructive possession criminal prosecution are typically complex it is crucial that you consult with an experienced California criminal defense attorney if you are charged with a crime on the basis of constructive possession. California Office of the Attorney General, Frequency Asked Questions Cornell University Law School, Constructive Possession Legal Match, What Is Constructive Possession of a Controlled Substance?

About the Author

Domenic J Lombardo Domenic J. Lombardo, (Attorney at Law) graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early 1996. Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as a a sole practitioner dedicated entirely to the defense of individuals accused of crimes. And while Mr. Lombardo works as the primary attorney for all his cases, he does have a team of investigators, forensic consultants, and paralegals to call on to help achieve the best possible result in every case. When he is not working, Mr. Lombardo is an avid family man, triathlete, and world traveler. The Law Office of Domenic J Lombardo The Executive Complex 1010 Second Ave., Ste. 1820 San Diego, CA 92101 www.AttorneyLombardo.com