Thank you for asking me “What is the difference between Actual and Constructive Possession in FL?”
Actual Possession occurs where a person is aware of the presence of an item because either:
1) The item is in the person’s hand or is somewhere on their person; 2) The item is in a container which is in the person’s hand or on the possessor’s person; or 3) The item is “so close as to be within ready reach and is under the control of the person”.
So, breaking the rule of not defining a word with the word itself, “actual possession” occurs where a person is actually in possession of the item in question. For example, I am in actual possession of this _____. But not all possession actual, and when it isn’t then the State may have proof problems.
You can also be in “Constructive possession” of an item, and this occurs when an item isn’t in your hand or is it on your person; rather:
1) Wherever the item is, you are aware of it’s presence; 2) The item is in a place over which you have control; and 3) You have the ability – even if you are not presently exercising it – to gain control of the item if you choose to do so.
Being close to an item is not enough to prove constructive possession.
To be in constructive possession the State is gonna have to prove that you knew it was where it was, that you had control over it and that you could have exercised control had you chosen to do so. So, I could be – I might be – in constructive possession of this _________.
Constructive possession is not cut and dry & a skilled and experienced criminal defense lawyer may be able to poke holes in the State’s case.
At Michael A. Haber, PA “it’s all about reasonable doubt”!
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