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What is Constructive Possession?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 19 November 2016
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    2003-2016
    Conjecture Corporation
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Constructive possession is a concept in the law that allows someone to be regarded as in possession of an item that is not in that person's physical custody in certain settings. In order for someone to be considered in constructive possession of an object, that person must have knowledge of the object and the ability to control it. This term can come up in a wide variety of legal settings from drug offenses to fraud.

Possession is a complicated concept in the law. There are a number of different ways to view possession, depending on the circumstances. In the case of constructive possession, it is actually possible for one person to have physical possession of an object while another person has constructive possession.

One example of how constructive possession works is the contents of a safe, safe deposit box, or locker. The person who puts objects inside a secured storage container has constructive possession. Even though he or she does not have physical possession of the items, the person knows where they are and controls access to them with the keys or combination.

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Another situation which can arise is one in which a seller retains goods until they are paid for. The buyer may own the goods by the terms of the contract, but the seller knows where the goods are and controls them until the buyer has paid. Likewise, a business which is defaulting on debts may find itself in a situation where lenders take constructive possession of business assets by securing them in such a way that they cannot be used by the business.

In the case of criminal activity such as fraud and embezzlement, criminals usually take steps to distance themselves from the evidence of their crimes. This means that embezzled funds may be put into an unrelated bank account, for example. However, the criminal is still in constructive possession of this evidence because the criminal's situation satisfies the standards of knowledge and control. If a link between the embezzlement and that account can be made, it is possible to prosecute.

With drug offenses, constructive possession is often used in situations where someone clearly has knowledge of drugs and control over them. A single person driving a car with a trunk full of cocaine, for example, is in constructive possession of the cocaine in the eyes of the law unless that person can show that she or he did not know about the drugs.

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