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Constructive Possession vs. Actual Possession

Can you define the word "possession"? Most people can do a reasonable of explaining what possession is. As the Merriam-Webster dictionary says, possession is "the act of having or taking into control".

Tennessee law defines actual possession in language quite similar to that used by Merriam-Webster. Actual possession is "direct and physical control over the item in question". People who have contraband items display an instinctual understanding of actual possession by trying to ditch contraband when they are stopped by police.

But as it turns out, there are actually two types of possession in Tennessee criminal law: actual possession and constructive possession. Constructive possession is a much more nebulous and problematic concept than actual possession Constructive possession frequently serves as the basis for prosecutions for crimes involving drug and firearms violations.

Defending charges based on constructive possession

You can be regarded as having constructive possession of an item when it is near you or in your vicinity, but not actually on your person. Constructive possession is "the power and the intention at a given time to exercise dominion and control over an object, either directly or through others".

For example, if you are driving your car and the police stop you and find a stolen gun under the driver's seat, the state can claim that you are in possession of the gun. But what if the gun is somewhere else in the car? If it's in the glove compartment, is that "possession" in the eyes of the law? If it's in the car's trunk, can it be said that you have the power to exercise control over it? What if you are a passenger in the car and it's not registered under your name?

Those questions underscore a basic truth about constructive possession. It is very fact-specific. The law makes it significantly more difficult for the state to establish constructive possession than actual possession in most cases. A savvy criminal defense lawyer will thoroughly consider all of the facts of the case to see if it really meets the legal definition of "possession". He or she may be able to successfully challenge the charge at trial by pointing out that the facts do not correspond with the nuances of the law. Alternatively, the lawyer may be able to persuade the prosecutor to drop the charge or offer an acceptable plea bargain to a lesser charge.

If you have been charged with possession of illegal drugs, weapons, or other contraband, seek counsel from an experienced criminal defense attorney.