What is Criminal Possession?

Possessing certain items is a crime.You could be facing jail time by simply having illegal items in your pocket, purse or car. In some cases, you could be sentenced to a minimum mandatory jail term. That means that a judge can’t give you probation or a suspended sentence. Jail is required.

What does possession mean? There are many ways to possess something. You can possess something if you have direct physical control or custody of it, such as by holding it in your hand or having it in your pocket. That’s the obvious example. But there are many more ways you could be found guilty of possession.

Common Possession Charges

The most frequent type of possession charges are possession of:

  • A firearm,
  • A controlled substance (drugs),
  • Stolen property, and
  • Burglarious tools.

Elements of Possession

You don’t have to be in actual physical custody to be found guilty of possessing an item. To be guilty of possession, you must have:

  • Knowledge of the object,
  • The ability to exercise control over that object, either directly or through another person, and,
  • The intent to exercise control over the object.


For example, you are in possession of things in your kitchen drawer at home or in the glove compartment of your car.

Mere Presence is Not Enough

Being in the same place where contraband is found is not possession. Mere presence is not enough for you to be found guilty. However, we see all the time where the police charge everyone in the vicinity of an illegal item. The thought there is to charge everybody and let it sort out in the court system.

There is a case where state troopers stopped the defendant for a cracked windshield. He was driving someone else’s car, alone, in the early morning on Route 495. He consented to a search (which is never a good idea). The troopers found over one thousand bags of heroin in the driver’s side door frame. The court ruled that merely driving with the heroin in the car was not enough for a conviction.

It is also not enough for the Commonwealth to prove that you were with someone, or associated with someone, who controlled an object. Again, it must be proved that you had knowledge of an illegal object with the ability and intent to control it.


Knowledge must be proven to find you guilty on a possession charge. But what is knowledge? Obviously, a jury can’t look into your mind to determine what you knew at the time. But the judge will instruct the jury to look to your:

  • words,
  • actions, and
  • surrounding circumstances

and make inferences about what you knew. For example, if contraband is in plain view in your apartment, a jury could infer that you knew it was there.

A jury must examine what you actually knew. It is not enough for the prosecution to argue that a reasonable person would have known of the illegal object.


You must intend to control the illegal item for you to be guilty of possession. What is intent? Intent is your purpose or objective. At trial, the jury must look to your state of mind to determine your intent. Obviously, no one can read your mind. But they will be instructed to look at all the facts to determine your intent. They will infer your intent by determining what the natural and probable consequences are of your actions.

Joint Possession

More than one person can possess an item. You do not need to be the sole owner or holder of something. If another person is holding something illegal for the benefit of the two of you, you could be found guilty of possession. As an example, you and a friend buy illegal drugs and the friend is holding them for you for later.

 n one case, two defendants were charged with possession of burglarious instruments. Only one person was in physical custody of a bag of tools. The other person was acting as a lookout. The Court found that since the second person was participating in the crime, he had knowledge of the tools and an intent and ability to use them.

In another case, two people were convicted of breaking and entering as well as possession of burglarious tools. When the police arrived at the scene both defendants tried to flee the area. One person was found with a tire iron on him. Both were convicted for the possession of the tire iron.

What is Constructive Possession?

Actual possession is when you have an illegal item on your person. For instance if you have a gun in your waistband or drugs in your pocket. Constructive possession is when the illegal item is not physically being held by you. Again, it must be shown that you knew of the item and had the ability and intent to control it.

For example, a defendant was found guilty of constructive possession of a firearm where the gun was under the passenger’s seat of the car he was driving. In that case, he was pulled over by the police. He leaned down and to the right before raising his hands. The jury found that this showed he had knowledge of the gun and was exercising control over it.

In a case of constructive possession of drugs, a defendant was found guilty where the drugs were in an apartment she shared with other people. The drugs were found on a dresser which had her purse in it. Inside the purse were documents with her name on them. Also found was a roach clip with her name on it. That was enough to find her guilty.

Learn more about constructive possession

How to Beat a Constructive Possession Charge

There are a several ways to challenge a possession charge, all of which depend on the specific facts of your case. Your attorney could argue that you had no knowledge of the contraband. Without knowing it was there, you can’t possess it. He or she could argue that even if you knew it was there, you had no intent or ability to control it.

A Motion to Suppress is often the way to beat a possession charge. Police conduct may be grounds for such a motion. In a Motion to Suppress, your attorney is asking the court to throw out the evidence seized or statements made. Such a motion is based on a violation of the law by the police. For instance, if there was no probable cause to search.


Possession is a very serious criminal charge. If convicted, you could go to jail. That would have an enormous effect on you and your family. Contact us so we can protect your legal rights and see if you qualify for our reduced rates. At Afford Law, we’re making justice affordable.

Constructive possession

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.