“Possession is nine-tenths of the law” is a very familiar saying, but you may not know that there are different types of possession. The two main types of possession recognized under federal law and in practically every state are actual possession and constructive possession. These concepts are not statutorily proscribed but instead have evolved through case law. Moreover, these types of possession apply not only to drugs, but to any item that may be deemed contraband. In this blog, we’ll explain those two types of possession and list some common defenses.
Actual Possession
Actual possession is the simpler of the two types and refers to a person having direct physical control over an item.
A question that has come up over time with actual possession is the issue of whether the contraband must be found on a person in order to consider it actual possession. In McCoy v. State, the Indiana Court of Appeals held that a defendant can be in “actual possession” of an item even if it is not directly found on his person. McCoy v. State, 153 N.E.3d 363 (Ind. Ct. App. 2020). In that case, a handgun was found in a shopping basket at a grocery store after the defendant left. The State admitted surveillance footage showing the defendant removing the gun from his waistband and placing it in the basket. The court found that the evidence presented was sufficient to permit an inference that the defendant had direct physical control over the handgun before he discarded it. Courts have also held that the presence of a defendant’s DNA on a firearm can support an inference that they had actual possession of it.
Common Defenses to Actual Possession
Actual possession can be harder to defend against. Defenses for this type of possession usually hinge on the procedural/investigative aspects of the case. Some common defenses are:
- Unlawful Search and Seizure
- Chain of Custody Issues
Constructive Possession
Constructive Possession is more complex than actual possession. It refers to a situation in which a person does not have direct physical control of an item but has the capability and the intent to maintain dominion and control over the item. To prove constructive possession, the state must satisfy both the intent and capability prongs.
Capability to Control
The capability to control an item is often inferred when the defendant has a possessory interest in the place where the item was found. For example, if someone is driving their car and gets pulled over, then charged with possession of an item found in the car, it will be inferred that they had control over the item because they own the car. This inference of capability to control holds even in situations where the possessory interest is not exclusive, as contraband can be jointly possessed.
Intent to Control
The intent prong of constructive possession refers to whether the defendant was aware of the contraband’s presence and its illegal character. If the defendant does not have exclusive possession of the premises, meaning they are not the only one in the home/car, the inference of the intent to control must be supported by additional elements. These relevant factors may include:
- Incriminating statements made by the defendant
- Attempted flight or furtive gestures
- Proximity of the contraband to the defendant
- Location of the contraband within the defendant’s plain view
- The mingling of the contraband with other items owned by the defendant
While these factors are common ones that the courts consider in constructive possession cases, they are not exhaustive. Additionally, there is no requirement that all or a specific number of the factors be met to establish intent to control.
Common Defenses to Constructive Possession
- Lack of awareness of the illegal item (especially if the item is not in plain view)
- Access to the item by multiple people with no evidence tying it to one person
- Inability to access the item/location where object is (if it is behind a locked bedroom in the house, or if it is in the trunk and you are a front passenger of the car)
Facing a Possession Charge in Indiana?
Navigating possession charges can be a stressful and confusing experience. If you or a loved one has been arrested on a possession charge, contact the experienced attorneys at Banks & Brower who know how to navigate these complicated issues. We are available 24/7 at 317-526-4630 or by email at info@banksbrower.com.
