Robin Fuson

The Difference Between Actual Possession And Constructive Possession

Criminal Defense

The state of Florida still imposes strict penalties for a number of drug crimes and drug-related crimes. While the possession of a small amount of an illegal drug for personal use is not the most serious drug offense, a conviction for possession can still send a defendant to jail. Scores of Florida drug laws cover the sale, cultivation, manufacture, distribution, and trafficking of illegal drugs. Sentences for those who are convicted will depend on the amount of drugs or money involved, the type of drugs, whether weapons or minors were involved, and a defendant’s criminal history.

In many drug and firearms cases, the legal principles of “actual possession” and “constructive possession” will come into play. According to Tampa criminal defense attorney Robin Fuson, “Actual possession can mean having an item on your person or so close that it is within ready reach. Example being, a firearm or narcotics in the center console while sitting in the driver’s or passenger’s seat and even the back seat.” You are legally in actual possession of drugs if the police find illegal drugs on your person, or in your hands or pockets, and no one else has real or equal access to those drugs.


But let’s say the police stop a car with three or four people inside, notice a strong marijuana odor, and find several ounces of marijuana stashed under the seats. In a similar scenario, let’s say the police serve a warrant at a home where three or four people reside, and the cops find illegal drugs in a common area like the kitchen. In cases like these, who gets charged with illegal drug possession? Under Florida law, each of the persons in the car or home could potentially be charged with, prosecuted for, and convicted of possessing illegal drugs under the legal principle of “constructive” possession.


Tampa criminal defense attorney Robin Fuson explains: “Constructive possession means possession of contraband, narcotics for example in which you cannot physically reach said contraband but maintain control of the contraband and its location. Examples would be, narcotics in your car, in a box that you buried somewhere, in your desk drawer at the office.” When the state of Florida prosecutes a defendant for the constructive possession of illegal drugs or any other contraband, to win a conviction the prosecution must prove that:

The defendant had “dominion and control” over the contraband.
The defendant knew that the contraband was present.
The defendant knew that the contraband was illegal.

Merely being in the same residence or vehicle where illegal drugs or weapons are is not enough to convict a defendant of possession. In drug and weapons cases, there is frequently a dispute regarding who owned and controlled the illegal weapons or drugs. Constructive possession means the drugs or weapons were easily accessible to the defendant and in a location that was under the defendant’s control.

Illegal drugs or weapons may be constructively possessed by two or more persons. For example, three adults sharing the same residence can constructively possess the same bag of marijuana if all three know where it is kept and have access – even if only one person made the purchase. But if one roommate keeps illegal drugs or weapons in his or her actual possession and hidden away from the other roommates, there is no constructive possession.

Under Florida law, constructive possession is the same thing as actual possession – same charge, same penalty. How do prosecutors establish that a defendant had constructive possession? First, a defendant had to know that illegal weapons or drugs were on or near his or her property, residence, vehicle, or in some cases, his or her workplace. Seeing the contraband or being literally told it is there is not necessary if a defendant reasonably knew about or should have reasonably inferred the contraband’s presence. Finally, a defendant had to know that the contraband was, in fact, illegal to possess.


In possession cases built on the concept of constructive possession, a defendant may only be convicted if he or she had the ability to maintain dominion and control over the contraband. Thus, a case can hinge on the precise definition of “the ability to maintain dominion and control.” If a defendant was not in personal, physical possession of the illegal weapons or drugs – that is, actual possession – then the defendant must have had the ability to take and maintain possession of the weapons or drugs.


When a defendant is the only person living in a home or is the sole occupant in a vehicle where illegal drugs or weapons are discovered, that alone is usually enough to establish constructive possession if not actual possession. But when a defendant is not the sole resident of the home or the sole occupant of the vehicle, the state will have to offer something more to win a conviction for constructive possession. That “something more” could be that the contraband was located in the defendant’s bedroom or other personal effects, that the contraband was in plain sight, or in the case of a vehicle, that the contraband was located under the defendant’s seat.


So here’s the bottom line: Florida’s criminal laws are designed to lead to convictions. To be found guilty of illegally possessing drugs or guns in Florida, the drugs or guns do not have to be yours, and they do not have to be in your personal possession. Anyone charged in central Florida with the possession – constructive or actual – of illegal drugs or weapons will need the counsel of an experienced criminal defense lawyer who can explain how the concept of constructive possession may play out in your own drug or weapons case.

In the state of Florida, constructive possession is still an evolving legal concept. Every case is different. Actual possession of drugs is usually “clear-cut,” but the state may have a harder time proving constructive possession, and that’s a genuine advantage for defendants. For example, in Culver v. State of Florida, the defendant was driving her car and had a passenger with her when the police stopped her and found more than 33 grams of crack cocaine behind the passenger seat. Ms. Culver was initially convicted of trafficking, but the appeals court reversed her conviction because her only proven link to the cocaine was that she was close to it.


If the police stop you in traffic or come to your home in Central Florida, be pleasant and cooperative, but insist on your right to remain silent if they start asking you questions. Never consent to a search of your home or vehicle. Anyone charged with possessing illegal drugs or firearms must be represented by an experienced defense lawyer who routinely handles cases that involve constructive possession.

Robin Fuson
By Robin Fuson