Federal Sentencing Guidelines

Tennessee Criminal Defense Lawyer Explains Constructive Possession

Tennessee criminal defense lawyerMany criminal offenses include possession of an item (usually contraband) as an element of the offense. Possession of a controlled substance and possession of a firearm are good examples of offenses that require the State to prove possession of something to convict the defendant. When possession is an element of the crime, the State may have to rely on “constructive possession” to prove its case. This often provides an avenue of defense for the defendant. A Tennessee criminal defense lawyer explains constructive possession for those who have been charged with a crime wherein the State must rely on it.

What Does It Mean to “Possess” Something?

If someone asked you what it means to “possess” something you would likely feel you could easily provide an answer. As used in everyday language, the word “possess” is fairly easy for most people to define. In legal terminology, however, the concept of “possession” can be much more complicated. At one time, the law only recognized the traditional definition of the word “possession.” In other words, if the law prohibited the “possession” of a controlled substance, it meant that a defendant must have been found in actual possession of the contraband.  Actual possession being defined as having immediate and direct physical control over the contraband. For example, if the police conduct a search of your person and they find a firearm in a holster on your belt, and you did not have a concealed carry permit, you had immediate and direct physical control over the contraband. That definition of “possession” left room for defendants to argue that they did not possess the contraband in question if it was next to them or otherwise not directly on their person. That, in turn, gave rise to the legal concept of “constructive possession.”

Defining Constructive Possession

Constructive possession evolved as a way for the State to prove its case when the police arrest someone for possession of contraband but the contraband in question was not found on the defendant’s person. Defining the term, and explaining when and how it applies, has been an ongoing challenge for law enforcement officers, attorneys, legal scholars, and even judges. The Supreme Court of the United States has even said: “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]). That ambiguity can work for, or against, a defendant. Despite the fact that a universally accepted definition for “constructive possession” remains elusive, the most widely accepted definition requires the State to prove that the defendant had “knowledge of the item in question and had the intent to maintain dominion and control over the item.”

Factors that are often considered relevant when determining whether a defendant had constructive possession of a controlled substance include:

  • How close was the contraband to the defendant?
  • If found in a vehicle, who owned the vehicle?
  • How many other people were in the immediate vicinity?
  • How long had the defendant been in the vicinity?
  • How well hidden was the contraband?

If your case involves a constructive possession argument on the part of the prosecution, it often opens the door for your criminal defense attorney to argue that you did not, in fact, have the “intent to maintain dominion and control over the contraband.” Because constructive possession is never as strong an argument as actual possession, it often provides an avenue for a winning defense that could prevent you from being convicted. As such, be sure to consult with an experienced Tennessee criminal defense lawyer right away if your case is based on a constructive possession argument.

Contact a Tennessee Criminal Defense Lawyer

If you are currently facing criminal charges in the State of Tennessee, it is in your best interest to consult with an experienced Tennessee criminal defense lawyer at Bennett, Michael & Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your appointment.

Stan Bennett