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Constructive Possession in California Gun and Drug Crimes


Understanding Actual & Constructive Possession of a Firearm in California

Every California crime has two essential parts: an act element and an intent element. For many offenses, the act and intent elements are easy to identify. In most cases, criminal law requires a finding that the defendant acted willfully or intentionally. However, for some possessory offenses, such as the possession of drugs, the act and intent elements blur.

What Is Actual Possession of a Firearm?

Typically, California possessory offenses require someone to either have “actual” possession or “constructive” possession. Actual possession is when someone physically possesses an object. For example, someone has actual possession of a gun that is in a holster strapped to their waist. Actual possession is often quite simple to determine. Cases involving actual possession are not unbeatable cases, because there may be a viable motion to suppress the evidence based on illegal police conduct or a violation of the defendant’s rights.

What Is Constructive Possession of a Firearm?

Constructive possession of a firearm, on the other hand, is a legal fiction that allows the fact finder to determine whether someone possessed a firearm or drugs by considering the surrounding circumstances.

In these cases, the contraband is not found on the defendant. Instead, the gun or drugs could be found in your home, vehicle, locker, rental space, or other space the defendant has access to. If constructive possession is established, it has the same legal effect as actual possession.

How Do Prosecutors Prove Constructive Possession?

Prosecutors routinely proceed with cases that are based on the defendant’s constructive possession of guns and drugs. Often, these cases involve weapons or narcotics that are found in vehicles or homes, out of the defendant’s reach. To prove constructive possession, the prosecution must establish two elements:

  1. Knowledge of the item’s presence; and
  2. The ability to maintain control over the item

Of course, in most cases, there will not be direct evidence that a defendant knew the item existed. Instead, prosecutors will rely on circumstantial evidence such as the location of the item in relation to the defendant and ownership of the vehicle or home where the item was recovered. Prosecutors may also argue that a defendant’s nervousness should be indicative of his knowledge of contraband. Under California law, multiple defendants can be charged with constructively possessing the same object. For example, if a single gun is found underneath the passenger seat of a vehicle, all occupants may be charged with possession of the firearm. Prosecutors will sometimes use this tactic to encourage the occupants to “flip” on the owner of the gun, making their case stronger against that individual. Of course, cases that rely on a constructive possession theory can often be fought on the basis that constructive possession did not exist.

Have You Been Charged for Gun or Drug Possession?

If you have recently been arrested and charged with the possession of a firearm or a California drug crime, contact Attorney John W. Noonan for assistance. As a veteran California criminal defense attorney, Attorney Noonan has extensive knowledge of the state’s search-and-seizure laws, and puts this knowledge and experience behind every case. Attorney Noonan is able to regularly suppress drugs and guns from evidence, resulting in the prosecution withdrawing the case against his clients. To learn more about how Attorney Noonan can help you defend against the charges you are facing, call (925) 886-4281 to schedule a free consultation today.