What is Constructive Possession of Guns or Drugs?

Constructive possession is a legal fiction that allows you to be charged with a serious crime even when the guns or drugs are not found on you. Usually this will happen when you are the driver or passenger of a car where the guns or drugs are found, or when they are found in a home you occupy.  To fully understand this legal concept, it is helpful to start with a definition of the term “constructive.”

According to the Oxford English Dictionary, the word “constructive” means: “not obvious or stated explicitly; derived by inference.” In the law the word constructive is used to cover many things that are implied, inferred or imputed to a person under a specific set of circumstances.  So, lawyers use phrases like “constructive contract” to refer to a contract that can be implied by people’s behavior even though the terms of the contract were never written down on a signed document. Similar legal concepts include constructive notice, constructive assent, constructive trust, constructive conversion, and so on.

With constructive possession it is the possession that is implied or inferred.  According to Black’s Law Dictionary, constructive possession occurs “where one does not have physical custody or possession but is in a position to exercise dominion or control over a thing.” Michigan courts recognize that the term “possession” includes both actual and constructive possession. Accordingly, a person has constructive possession if there is proximity to the article together with indicia of control.[i] Said differently, a person has constructive possession if the location of the drugs or the gun is known, and it is reasonably accessible to the person. Physical possession is not necessary if the person has constructive possession.[ii] Constructive possession can be established with circumstantial evidence. [iii]

When trying to understand this concept, another place to look is the standard Michigan Criminal Jury instructions.  These are used to explain legal concepts to jurors and are considered to be a correct summary of Michigan law.  Reading from M Crim JI 12.7 the judge will say this to the jury about the meaning of possession:

Possession does not necessarily mean ownership. Possession means that either:

• The person has actual physical control of the [substance / thing], as I do with the pen I’m now holding, or
• The person has the right to control the [substance / thing], even though it is in a different room or place.
• Possession may be sole, where one person alone possesses the [substance / thing].
• Possession may be joint, where two or more people each share possession.
• It is not enough if the defendant merely knew about the [state substance or thing]; the defendant possessed the [state substance or thing] only if [he / she] had control of it or the right to control it, either alone or together with someone else.

In trying to understand the legal fiction of constructive possession it is also helpful to look at some examples.  In one Michigan case the defendant was charged with possession of drugs and felony firearm. In this case a large quantity of cocaine and a firearm were both found inside the defendant’s bedroom.  The defendant was arrested 2 blocks away from the home.  At trial the jury found the defendant guilty of both crimes on the theory of constructive possession.

The defendant only appealed the felony firearm charge because he agreed that a person can constructively possess drugs even when they are located 2 blocks away.  The felony firearm charge was different because it required a showing of possession while in the commission of the crime.  On this basis the court reversed the jury’s verdict, holding that for the purposes of the felony-firearm statute, a person away from home cannot be deemed in possession of a firearm found in his house. Furthermore, the court indicated that punishing a person for the possession of a firearm that is not accessible or at his disposal, as opposed to being under less immediate dominion or control, does not fulfill the purpose of the felony-firearm statute.  Accordingly, the possession requirement of the felony-firearm statute requires ready accessibility.

If you have been charged with possession based on this constructed legal fiction, then you will be well served in having an attorney take a close look at the facts and circumstances of your case. Because constructive possession is often proved by circumstantial evidence, even a small and seemingly insignificant fact, combined with a persuasive argument to a jury, can make the difference between your being found guilty or not guilty.

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[i] People v. Davis, 101 Mich. App. 198, 300 N.W.2d 497 (1980).

[ii] People v. Terry, 124 Mich.App. 656, 335 N.W.2d 116 (1983). [433 Mich. at 470-471, 446 N.W.2d 140.].

[iii] People v. Hill, 433 Mich. 464, 469-471, 446 N.W.2d 140 (1989).