Constructive Possession

What Is Constructive Possession?

Constructive PossessionFor a judge or jury to convict you of a criminal offense in the State of Tennessee – or anywhere in the United States — the judicial system requires the prosecution to prove each and every element of the crime beyond a reasonable doubt. If the offense includes an element that involves “possession” it may be more difficult for the State of Tennessee to prove than you realize if the State is relying on the legal concept known as “constructive possession” in order to satisfy the “possession” element of the offense. Only an experienced Tennessee criminal attorney can evaluate your case and advise you whether or not the prosecution of your case involves constructive possession; however, if your case does involve constructive possession it will be to your benefit to understand what the State has to prove and how you may be able to use the situation to your advantage.

Elements of a Crime

“Possession” is often an element in a criminal offense, either because it is illegal to possess the item in question or because it is illegal for the defendant to possess the item. For example, Tennessee Code Section 39-17-417 makes it illegal to possess a controlled substance without a valid prescription, stating as follows:

(a.) It is an offense for a defendant to knowingly:

(1) Manufacture a controlled substance;

(2) Deliver a controlled substance;

(3) Sell a controlled substance; or

(4) Possess a controlled substance with intent to manufacture, deliver or sell the controlled substance. (Emphasis added)

Likewise, Tennessee Code 39-17-1307 makes it illegal for certain people to possess a firearm, stating, in pertinent part, as follows:

  1. b) (1) A person commits an offense who possesses a firearm, as defined in § 39-11-106, and:

(A) Has been convicted of a felony involving the use or attempted use of force, violence or a deadly weapon; or

(B) Has been convicted of a felony drug offense.

(Emphasis Added)

Isn’t Possession a Simple Concept?

If someone asked you if you understand what the word “possession” means you would likely answer with a very certain “yes.” The word “possession” is a word we all use in our everyday vernacular and, therefore, we all feel we can define the word without giving it much thought. The law, however, doesn’t define possession the same way we all do. In fact, the definition of the word “possession” has been hotly debated by lawyers and scholars alike for a long time. How can this be possible? Because the law actually divides the concept of possession into two types of possession – actual and constructive.

How Did the Concept of Constructive Possession Develop?

As is often the case, the legal concept of constructive possession arose out of a need within the law. When possession of something is illegal, it only makes sense that a potential suspect is going to do everything possible to avoid being caught with the contraband on his/her person. For example, imagine that you are transporting a controlled substance over some distance. You are going to hide it in a vehicle/suitcase/package to avoid having the incriminating item on your person. If stopped, you at least have the option of claiming that the contraband is not yours. Of course, the police may know it is yours from a common sense perspective; however, without the concept of constructive possession the prosecution would not be able to prove, from a legal perspective, that you were in possession of the contraband. Essentially, the legal concept of constructive possession, therefore, developed out of the need to be able to prove possession when that possession is not actual.

Actual vs. Constructive Possession

When post people use the word “possession” they are referring to actual possession. In legal terms, “actual possession is what most of us think of as possession—that is, having physical custody or control of an object” (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y. 1988]). The most common definition used to explain the legal concept of constructive possession requires that you have:

  1. knowledge of the drug’s presence on or about your property and
  2. the ability to maintain dominion and control over it.

Therefore, in order for the State of Tennessee to convict you of a criminal offense that involves construction possession of an item the prosecution must prove that you had knowledge and the intent to maintain dominion and control over the contraband. Depending on the facts of the case, this can be difficult for the prosecution do accomplish, providing you with a potentially strong defense strategy.

Contact Us

If you have been charged with a criminal offense that includes constructive possession, consult with the experienced Tennessee criminal defense attorneys at Bennett, Michael & Hornsby. Contact the team today by calling 615-898-1560 to schedule your appointment.



Stan Bennett
Latest posts by Stan Bennett (see all)