In Florida, it is illegal to merely possess certain items, such as drugs or certain weapons. In such cases, whether a person was in “actual” versus “constructive” possession is often a key fact. Depending on the type of possession, similar cases may have different outcomes.

To prove Possession beyond a reasonable doubt, the State must prove:

1. That the defendant knew about the contraband and;

2. Intentionally exercised control over the contraband.

“Actual Possession” means directly on a person, in a container directly on the person, or so close as to be within immediate reach and under control of that person. Examples include: in a person’s hand, in a person’s pocket, in a person’s purse on his or her shoulder.

“Constructive Possession” means in a place where a person knows of the contraband and is in a place where that person either has control or has concealed the contraband. Examples include: in a person’s car while he or she is at work, in a person’s sock drawer, hidden in a person’s garage.

“Actual possession” is typically immediately apparent. Whereas “constructive possession” may be much more difficult to prove.

That is because, in order to prove “constructive possession, the prosecution must prove:

1. Knowledge of the contraband

2. Control over the contraband’s place

3. Control over the contraband

Particularly when a defendant does not make incriminating admissions, it is often very difficult for a prosecutor to prove that a person “constructively” possessed an item.

Even if the difference between “actual” and “constructive” possession doesn’t amount to a defense, there still is still a meaningful impact in certain types of cases. For example, under Florida’s 10-20-Life statute, which proscribes potentially severe mandatory minimum sentences, offenders must “actually” possess the firearm during the commission of the felony. The term “actually” in this context has been interpreted as the legal distinction between “actual” and “constructive” possession. In a 10-20-Life case, it may be a defense to the mandatory minimum if possession of the firearm was constructive, rather than actual.

If you or a loved one has a case where you think the distinction between “actual” and “constructive” possession is meaningful for a defense or sentence and would like guidance, contact me today for a free consultation.

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