What Makes Possession "Constructive" vs. "Actual?”
When it comes to criminal law, the concept of "possession" plays a major role in many cases, especially those involving drugs, weapons, or stolen property. In Nebraska and across the country, there are two main types of possession that prosecutors and defense attorneys deal with: actual possession and constructive possession.
Understanding the difference between these two types of possession can be critical in a criminal defense case. Courts treat them differently, and proving or disproving either type can significantly impact the outcome of a case. At Hug and Jacobs, LLC in Omaha, Nebraska, we'll help guide you through this.
Actual Possession: The More Obvious Form
Actual possession is the simpler of the two types. It refers to having physical control over an object. If something is on your person—like in your hand, pocket, or backpack you're wearing—you're in actual possession of it. The law sees this as direct control.
In criminal cases, actual possession is usually easier for prosecutors to prove. If the police find drugs in your coat pocket during a pat-down or discover a stolen item in your purse, they can claim you had actual possession. This direct connection often gives prosecutors a strong argument.
Here are some situations that typically involve actual possession:
A person has illegal drugs in their pants pocket
A firearm is tucked into someone's waistband
A stolen item is found in a purse or backpack that's being carried
Someone is holding a prohibited item in their hand when stopped by police
Actual possession doesn’t require much legal interpretation. If it’s on you, it's yours—at least according to how most courts view it.
Transitioning From Physical to Legal Possession
While actual possession is based on physical proximity, the law recognizes that people can still have control over something even if it isn’t directly on them. That’s where constructive possession comes into play. This type of possession can be more challenging to prove—or disprove—because it relies on indirect control and intent rather than direct contact.
Constructive possession becomes a key issue when an item is found in a shared space or not directly on any one person. In these situations, prosecutors must prove that the person had both the ability and the intention to control the item.
Constructive Possession: Control Without Touch
Constructive possession happens when a person doesn’t have something physically on them but still has the power and intention to control it. This concept often arises in cases where multiple people are present and something illegal is found in a common area, like a car or apartment.
To prove constructive possession, prosecutors must show two things:
The defendant knew the item was present
The defendant had the ability and intention to control it
Here are some examples of constructive possession:
Illegal drugs are found in the glove compartment of a car you’re driving
A firearm is under the seat of your vehicle, even if you’re not the owner
Contraband is located in your bedroom, even if it’s hidden in a drawer
Stolen property is found in a storage unit rented in your name
In each case, the law doesn’t require the item to be on your person. Instead, what matters is whether you had control over the location and the item, along with knowledge that it was there.
How Courts Determine Constructive Possession
Since constructive possession is about control and awareness rather than physical contact, courts look at the circumstances. They try to figure out whether the person has both the knowledge of the item and the power to control it. This can involve a lot of gray areas and depends on the facts of each case.
Things courts consider when evaluating constructive possession:
Proximity: Was the item close enough that the person could easily reach or access it?
Ownership: Did the person own or rent the place where the item was found?
Behavior: Did the person act suspiciously when law enforcement arrived?
Statements: Did the person admit to knowing about the item or claim ownership?
Fingerprints or DNA: Is there physical evidence linking the person to the item?
Each of these factors can help support—or weaken—a constructive possession charge. A skilled criminal defense attorney can argue against these points and raise doubt about the defendant's control or awareness.
Why Constructive Possession Can Be Tricky
Unlike actual possession, constructive possession leaves more room for interpretation. That means there's also more opportunity for a solid criminal defense. Prosecutors often rely on circumstantial evidence, and the defense can challenge it by pointing out alternative explanations or casting doubt on intent.
Challenges to constructive possession might include:
Showing the item belonged to someone else with equal access
Arguing the defendant didn’t know the item was there
Proving that the defendant had no control over the area
Questioning the reliability of witnesses or physical evidence
Because constructive possession relies on assumptions about what someone knew or intended, it's often the subject of heated legal arguments.
Constructive vs. Actual: Why the Difference Matters
You might wonder why it matters whether possession is actual or constructive. The answer lies in how the law treats each situation. Actual possession tends to be more straightforward and harder to dispute. Constructive possession, on the other hand, opens the door to more legal defenses.
Here’s how this distinction affects criminal defense:
Evidence: Actual possession often comes with direct physical evidence. Constructive possession may rely on circumstantial evidence
Legal strategy: Defense attorneys can more easily challenge constructive possession by questioning intent and control
Burden of proof: Prosecutors have a tougher time proving constructive possession beyond a reasonable doubt
In any possession case, the details matter. But when constructive possession is involved, the defense has more tools to work with. Reach out to attorneys Jerry Hug and Kenny Jacobs for more information.
What This Means for Criminal Defense in Nebraska
In Nebraska, like in many states, both types of possession can lead to criminal charges. But a strong criminal defense can make a major difference in how these cases play out. Local judges and prosecutors may interpret evidence in different ways, which makes it crucial to have an attorney who understands how these laws are applied in Omaha and across the state.
Nebraska law doesn’t require prosecutors to prove that a defendant owned an item—only that they had control over it. That’s why constructive possession charges can be so broad. A solid criminal defense will focus on breaking down the prosecution's assumptions, showing that the defendant didn’t have the necessary knowledge or control.
Here are some strategies that might be used in your criminal defense:
Cross-examining witnesses who claim you knew about the item
Disputing who had access to the location where the item was found
Presenting evidence that someone else had control or ownership
Challenging the search that led to the discovery of the item
Whether you're facing state or federal charges, the distinction between constructive and actual possession can shape the entire defense strategy.
Reach Out Today
Understanding the difference between constructive and actual possession isn't just about legal definitions—it's about knowing how the law might apply to your case.
This knowledge could help you and your criminal defense attorney find the right strategy to fight the charges. If you're facing a possession charge, don’t leave your defense to chance. We serve clients in Omaha, Nebraska, as well as the surrounding areas of Fremont, Lincoln, Papillion, and Wahoo. Contact us today.