Switch to ADA Accessible Theme Close Menu
Fort Lauderdale Criminal Attorney 500 southwest 3rd Avenue
Fort Lauderdale, FL 33315
Free Confidential Consultation

Actual Versus Constructive Possession in Florida Criminal Cases


There are some crimes in Florida where simply having an illegal item in your possession is illegal, without you taking any other action. Of course, if you were arrested, that means the concept of possession will be central to your case. In regular usage, the term is pretty straightforward; in the practice of law, “possession” is a lot more complicated. You should discuss your situation with a Fort Lauderdale criminal attorney, but you may find it helpful to review some important information on what the law says.

Actual Possession: When you have contraband in your hand or pocket, or within the immediate area of your body, you may be considered to have actual possession over it. In addition, you could be in actual possession over an item if it’s in a purse, satchel, briefcase, or other bag that people typically carry close to the body. If you’re in actual possession, it’s likely that you’ll be the only one charged with a crime.

Factors Regarding Constructive Possession: This concept of possession is much broader, allowing police expansive power to charge you with a crime, even if:

  • You don’t own the contraband;
  • The item isn’t on your person or in a purse you’re carrying;
  • Many other people have access to it;
  • The contraband is in a glove box or trunk of a car you borrowed; or,
  • You’re at a friend’s house and officers find the item during a search.

Constructive possession is a much broader concept, and it’s determined on a case-by-case basis. Fortunately, there are some challenges for the prosecution, who must show that you knew that illegal contraband was present and you had some form of control over it.

When Actual and Constructive Possession Matters: From the above, you can see that possession issues are more likely to arise with certain types of criminal activity – basically, any offense where you have contraband and know it. In Florida, actual or constructive possession will be a factor in:

  • Gun crimes, if you’re a convicted felon or otherwise prohibited from owning, carrying, possessing, or otherwise exercising control;
  • Drug possession, including marijuana or any other controlled substance; and,
  • Drug trafficking, if the amount of a controlled substance under your control elevates it to an offense involving selling, producing or other forms of distribution.

It’s important to note that actual or constructive possession does NOT change the nature of the charges. In other words, you won’t be facing a lesser crime for constructive possession of drugs as opposed to actual. The key to beating the charges is disputing that you had possession at all.

A Florida Criminal Defense Attorney Can Explain Possession Legal Issues

If you were arrested for a drug or gun crime, please contact attorney Kevin J. Kulik to learn more about your defense options. There may be grounds to fight the charges on the basis of actual or constructive possession, which is why you’ll need an experienced lawyer to represent you. We can discuss strategies at a confidential consultation at our Fort Lauderdale, FL office.


Facebook Twitter LinkedIn