Actual possession is the physical control of an item or property that is exercised by an individual or entity. It is the direct, immediate, physical control of the property by a person who claims it. Examples of actual possession include physically holding an item, such as a book, or having an object in one’s home or office. Constructive possession is the legal concept of an individual or entity having ownership or control over an item or property even if he or she is not physically in possession of it. Constructive possession is based on the idea that a person can claim ownership over something he or she does not have in his or her physical possession. Examples of constructive possession include having legal title to an item or property, such as a deed to a house, or having a contract outlining the terms and conditions of ownership. There are two types of constructive possession: implied possession and joint possession. Implied possession applies when an individual has the legal right to control an item but does not actually have physical possession of it, such as when a person rents a car. Joint possession applies when two or more individuals have the legal right to control an item or property, such as when two people own a car jointly.
ACTUAL AND CONSTRUCTIVE POSSESSION
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FAQ
Constructive possession is a legal fiction to describe a situation in which an individual has actual control over chattels or real property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.
Possession as a Criminal Act There are two types of possession: actual possession and constructive possession.
Definition of Actual Possession In other words, actual possession is the term that is commonly used to refer to being in immediate physical contact with the object in question. Somebody that is carrying a cellphone in their pocket, for example, is considered to have actual possession of that cellphone.
The law provides for two different charges: Actual possession of drugs is when the police find the drugs on you, in your hand, and no one else had equal access to the drugs found. Constructive possession of drugs occurs when law enforcement believes there are multiple people with knowledge and access to drugs.
First, a person may have physical possession of property by holding it in his or her hand, by carrying it in his or her clothing, or by otherwise having it on his or her person. Second, a person may possess property not in his or her physical possession by exercising dominion or control over that property.
Generally, for a court to find that a person had constructive possession of an object, the person must have had knowledge of the object, and as well as the ability to control it. For example, someone with keys to a safe deposit box may have constructive possession to the contents of that box.
Constructive possession occurs when law enforcement finds drugs in your general area, but not on you. Multiple other people would also have access to the drugs. Take, for example, a person who is in their friend's living room when police come in with a search warrant and find drugs.