Possession- Constructive vs Actual

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Greg Spencer Law

Indianapolis, IN

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Practice Areas: Criminal Defense, DUI and DWI

 

What seems like a pretty basic charge to understand, possession of controlled substances and illegal possession of firearms can sometimes be difficult to fully understand.

 

At the basic level, possession of controlled substance and possession of firearm cases fall into two broad categories: ACTUAL POSSESSION and CONTRUCTIVE POSSESSION.   Actual possession means just that – one is in actual possession of the item. Constructive possession is more complicated. One would be found to be in constructive possession if he/she has both the power and the intention at a given time to exercise control over that item.

The Indiana Pattern Jury Instructions for Criminal Cases defines possession as follows:

Instruction No. 14.3060. Possession defined:

The word “possess” means to own or to exert control over. The word “possession” can take on several different, but related, meanings.  There are two kinds of “possession”—actual possession and constructive possession. A person who knowingly has direct physical control of a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.

The courts in Indiana have stated the following:  Constructive possession is the intent and capability to maintain dominion and control over the illegal item. Proof of a possessory interest in the location where the illegal drugs are found is adequate to show the capability to maintain control over them. When possession of the location is not exclusive, the inference of intent and capability to maintain dominion and control over the illegal item must be supported by additional circumstances pointing to an accused's knowledge of the nature of the illegal item and their presence. Davenport v. State (1984)

What type of additional circumstances are the police and prosecutors going to try to use to show someone was in possession of an illegal item found in a car?  If a firearm is found under the seat or between the cushions of where someone is sitting, if cocaine is found in the trunk of a car next to bags belonging to a passenger, or inside one of the passenger’s bags.  Is the item in a location that someone in the car might have been able to reach it?  Are there fingerprints or DNA evidence on a weapon?

Consider the definition cited above as it continues with the following language:

Instruction No. 14.3060. Possession defined (continued):

Possession may be sole or joint. If one person alone has actual or constructive possession of an item, then possession is sole. If two or more persons share actual or constructive possession of an item, then possession is joint.  Possession may be actual or constructive, and either alone or jointly with others.

Further, with the definition applying to possession cases, it is possible for two or more people to be in possession of the same item.  However, there must be evidence that connects those two people to the same item.

Consider the following criminal charges related to Possession:

 

 

35-48-4-7. Possession of a controlled substance.

(a)  A person who, without a valid prescription or order of a practitioner acting in the course of the practitioner’s professional practice, knowingly or intentionally possesses a controlled substance (pure or adulterated) classified in schedule I, II, III, or IV, except marijuana, hashish, salvia, or a synthetic cannabinoid, commits possession of a controlled substance, a Class A misdemeanor, except as provided in subsection (b).

(b)  The offense is a Level 6 felony if the person commits the offense and an enhancing circumstance applies.

(c)  A person who, without a valid prescription or order of a practitioner acting in the course of the practitioner’s professional practice, knowingly or intentionally obtains:

(1)  more than four (4) ounces of schedule V controlled substances containing codeine in any given forty-eight (48) hour period unless pursuant to a prescription;

(2)  a schedule V controlled substance pursuant to written or verbal misrepresentation; or

(3)  possession of a schedule V controlled substance other than by means of a prescription or by means of signing an exempt narcotic register maintained by a pharmacy licensed by the Indiana state board of pharmacy;

commits a Class A misdemeanor.

 

(1)  the person has a prior conviction for a drug offense; and

(2)  the person possesses:

(A)  at least thirty (30) grams of marijuana; or

(B)  at least five (5) grams of hash oil, hashish, or salvia.

(c)  A person who knowingly or intentionally possesses a synthetic drug or synthetic drug lookalike substance commits possession of a synthetic drug or synthetic drug lookalike substance, a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this section or under section 10.5 [IC 35-48-4-10.5] of this chapter.

 

35-47-4-5. Possession of firearm by serious violent felon.

(a)  As used in this section, “serious violent felon” means a person who has been convicted of:

(1)  committing a serious violent felony in:

(A)  Indiana; or

(B)  any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a serious violent felony; or

(2)  attempting to commit or conspiring to commit a serious violent felony in:

(A)  Indiana as provided under IC 35-41-5-1 or IC 35-41-5-2; or

(B)  any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of attempting to commit or conspiring to commit a serious violent felony.

(b)  As used in this section, “serious violent felony” means:

(1)  murder (IC 35-42-1-1);

(2)  voluntary manslaughter (IC 35-42-1-3);

(3)  reckless homicide not committed by means of a vehicle (IC 35-42-1-5);

(4)  battery (IC 35-42-2-1) as a:

(A)  Class A felony, Class B felony, or Class C felony, for a crime

committed before July 1, 2014; or

(B)  Level 2 felony, Level 3 felony, Level 4 felony, or Level 5 felony, for

a crime committed after June 30, 2014;

(5)  domestic battery (IC 35-42-2-1.3) as a Level 2 felony, Level 3 felony, Level 4 felony, or Level 5 felony;

(6)  aggravated battery (IC 35-42-2-1.5);

(7)  kidnapping (IC 35-42-3-2);

(8)  criminal confinement (IC 35-42-3-3);

(9)  rape (IC 35-42-4-1);

(10)  criminal deviate conduct (IC 35-42-4-2) (before its repeal);

(11)  child molesting (IC 35-42-4-3);

(12)  sexual battery (IC 35-42-4-8) as a:

(A)  Class C felony, for a crime committed before July 1, 2014; or

(B)  Level 5 felony, for a crime committed after June 30, 2014;

(13)  robbery (IC 35-42-5-1);

(14)  carjacking (IC 5-42-5-2) (before its repeal);

(15)  arson (IC 35-43-1-1(a)) as a:

(A)  Class A felony or Class B felony, for a crime committed before July

1, 2014; or

(B)  Level 2 felony, Level 3 felony, or Level 4 felony, for a crime

committed after June 30, 2014;

(16)  burglary (IC 35-43-2-1) as a:

(A)  Class A felony or Class B felony, for a crime committed before July

1, 2014; or

(B)  Level 1 felony, Level 2 felony, Level 3 felony, or Level 4 felony, for

a crime committed after June 30, 2014;

(17)  assisting a criminal (IC 35-44.1-2-5) as a:

(A)  Class C felony, for a crime committed before July 1, 2014; or

(B)  Level 5 felony, for a crime committed after June 30, 2014;

(18)  resisting law enforcement (IC 35-44.1-3-1) as a:

(A)  Class B felony or Class C felony, for a crime committed before July

1, 2014; or

(B)  Level 2 felony, Level 3 felony, or Level 5 felony, for a crime

committed after June 30, 2014;

(19)  escape (IC 35-44.1-3-4) as a:

(A)  Class B felony or Class C felony, for a crime committed before July

1, 2014; or

(B)  Level 4 felony or Level 5 felony, for a crime committed after June 30,

2014;

(20)  trafficking with an inmate (IC 35-44.1-3-5) as a:

(A)  Class C felony, for a crime committed before July 1, 2014; or

(B)  Level 5 felony, for a crime committed after June 30, 2014;

(21)  criminal organization intimidation (IC 35-45-9-4);

(22)  stalking (IC 35-45-10-5) as a:

(A)  Class B felony or Class C felony, for a crime committed before July

1, 2014; or

(B)  Level 4 felony or Level 5 felony, for a crime committed after June 30,

2014;

(23)  incest (IC 35-46-1-3);

(24)  dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1);

(25)  dealing in methamphetamine (IC 35-48-4-1.1);

(26)  dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2);

(27)  dealing in a schedule IV controlled substance (IC 35-48-4-3); or

(28)  dealing in a schedule V controlled substance (IC 35-48-4-4).

(c)  A serious violent felon who knowingly or intentionally possesses a firearm

commits unlawful possession of a firearm by a serious violent felon, a Level 4

felony.

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