Constructive Possession: Can I Be Convicted of a Crime if I Didn't Have Anything On Me?

Facing criminal charges for possession – whether it’s drugs, stolen property, or firearms – can be an overwhelming experience, and understanding how possession works is essential. Many people assume that if something isn’t physically on them, they can’t be convicted of a crime related to it. However, the concept of constructive possession challenges this assumption. 

Understanding how constructive possession works might become a critical component of your defense strategy in a criminal case.

Definition of Constructive Possession

Definition of Constructive Possession

Constructive possession is a concept where an individual can be considered to possess items even if those items are not physically on them at the time of discovery. Two critical elements define this form of possession:


For someone to be found in constructive possession, they must be aware of the existence and nature of the possessed item. If someone isn’t aware that an illegal object is within their domain, it can be argued that they can’t technically possess it in a legal sense.


This implies not just awareness but also having power over the use and disposal of an item – basically the ability to exercise dominion over where the item is. 

For example, a person rents out a locked storage unit where illegal substances are discovered. Even though the substances aren’t found on their physical person, if it’s proven they had the key to the storage unit and were capable of accessing it, this could be considered control. 

Types of Criminal Cases Where Constructive Possession is Relevant

The principle of constructive possession frequently applies in cases involving drugs, firearms, or stolen property. For example:

Drug Possession 

In drug possession cases, the concept of constructive possession comes into play when illegal drugs are found in a place over which an individual has control but they are not physically on that person at the time they’re discovered. 

For example, law enforcement searches your vehicle during a traffic stop and finds drugs hidden away. In some cases, it can be inferred that you possess the drugs. If you’re the only person in the car and/or you’re the owner of the car, it’s likely that the substances will be attributed to you. 

Stolen Property

If stolen goods are found in areas you have access to – like your garage – but not physically on you at the time of discovery, investigating officers and prosecutors may still press charges for theft or possession of stolen merchandise based upon constructive possession theories. 

Firearm Possession

Constructive possession can be particularly relevant in cases involving firearms where an individual is charged for possessing a gun that wasn’t found on their person but, instead, at a location they had control over or frequent access to. 

For example, law enforcement discovers a firearm stored in the trunk of your car. Even if it’s not discovered directly on you during the search, as the owner and primary user of the automobile, it’s almost certainly going to be attributed to you. 

Multiple People Can Be Charged Under Constructive Possession Theories

Under theories of constructive possession, it’s possible for an item to be possessed by one person or many individuals collectively. One contentious legal area is the application of constructive possession in scenarios where multiple people have access to a single location.

For example, if illegal drugs are found in a shared residence’s common space like the living room or kitchen, anyone that resides there could potentially face charges for constructive possession. The fact that one person is charged with possession doesn’t mean no one else will be.

Defending Against Constructive Possession

The stakes are high in cases based on constructive possession, making solid defense strategies critical. Here is an overview of how these charges can be contested:

Lack of Knowledge

An effective approach could be to argue that you weren’t aware of the illicit item’s presence. The prosecution typically needs to prove you had knowledge to support a claim for constructive possession.

Lack of Control

You may be able to defend against these charges by demonstrating that even though the object was in an area accessible to you, you did not have control or dominion over where the item was found. This rebuts a key component required to establish constructive possession. 

For example, if an illegal item was found in a house you were visiting but did not reside in or control, this could be used to argue against your ability to exercise control over the premises. Similarly, if an object is discovered within a rented portion of property, such as a locked room belonging to another person, your attorney could argue lack of control.

Access by Multiple Parties

If the item was found in a common area to which numerous individuals had access, it is important to point out this shared accessibility. Just because an individual had potential access does not sufficiently establish control or possession, especially when many people could have placed the item there. 

Fourth Amendment Violations

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures by law enforcement. If evidence of constructive possession is gathered through a violation of these protections – for instance, without a proper search warrant or outside the scope granted by one – it may be possible to argue through a motion to suppress that any such evidence should be excluded given that your rights were violated.

Insufficient Evidence

Another potential defense centers on challenging the strength of the prosecution’s case. Your attorney could argue that the evidence presented does not meet the stringent standard of beyond a reasonable doubt required in criminal cases. 

This defense focuses on highlighting holes and uncertainties in the prosecution’s narrative, emphasizing any lack of direct proof that places you at the scene with both awareness and control over an illicit item.

Mistaken Identity

A mistaken identity defense involves challenging claims that suggest certainty in placing the defendant with the item in question, particularly when identification is flawed. Your defense can point to inaccuracies in eyewitness accounts or problems with line up procedures, for example. 

Contact an Experienced Louisville Criminal Defense Attorney If You’re Facing Charges Based on Constructive Possession

The theory of constructive possession expands the scope of what it means to “possess” something in a legal sense. It underscores that control over and knowledge of an item can establish possession just as much as physically carrying it would.

If you’re facing charges based on constructive possession, make sure to secure your rights and get the proper defense. Get Suhre & Associates DUI and Criminal Defense Lawyers to fight for you. Contact us today at (502) 371-7000 to schedule a free consultation with a Louisville criminal defense lawyer.