If you ask most people if they can define the word “possession” they will likely answer in the affirmative. As is often the case, however, the legal definition of the word possession is not as simple as most people think. In fact, the law recognizes two types of “possession” – actual and constructive. If you are currently facing charges for a criminal offense in Tennessee, and that offense requires the prosecution to prove that you “possessed” contraband of one kind or another, you should have at least a basic understanding of what is meant by actual and constructive possession.
Many criminal offenses include “possession” of some type of contraband, such as drugs or a weapon, as one of the elements of the offense. For example, Tennessee Code, 39-17-418 – Simple Possession or Casual Exchange reads as follows:
“It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice.”
To secure a conviction, the prosecuting attorney will need to prove that the defendant “possessed” a controlled substance in that offense. When possession is actual it is typically easy to prove because actual possession means the item was under the defendant’s immediate physical control. If the defendant was not in actual possession though it does not mean he/she cannot be convicted. If the prosecutor can show the defendant had constructive possession of the contraband a conviction could still be forthcoming.
The term “ constructive possession ” has been defined many ways over the years; however, in the State of Tennessee, the courts have defined the term as follows:
“Constructive possession occurs when a person knowingly has “‘the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.’” State v. Williams, 623 S .W.2d 121, 125 (Tenn. Crim. App. 1981) (quoting United States v. Craig, 522 F.2d 29, 32 (6th Cir. 1975)).”
In essence, constructive possession applies when it is clear that an item belongs to an individual but the item was not found on the individual or in the individual’s immediate physical control. Although you can be convicted when you only had constructive possession of an item of contraband, it is typically more difficult for the state to prove your guilt.
If you were arrested and charged with an offense that includes “possession” as an element, it is in your best interest to consult with the experienced Tennessee criminal defense attorneys at Bennett, Michael & Hornsby to discuss your defense options. Contact the team today by calling 615-898-1560 to schedule your free appointment.
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