Course: Introduction / Criminal Law
Actual possession means that a person has actual physical control or custody over something.
Contrast with constructive possession.
Actual possession is a legal term that refers to physical control or custody over something. It is an essential concept in criminal law, particularly in cases that involve the possession of illegal substances or objects. This is distinct from constructive possession, which refers to a situation where an individual does not have physical possession of an object but has the ability and intent to exercise control over it.
In criminal law, possession is a critical element in proving a defendant’s guilt in various offenses. Possession means that the defendant has the physical or constructive ability and the intent to control the object in question. This is typically easier to prove than constructive possession, as it involves direct physical control over the object.
For example, if a police officer stops a suspect and finds illegal drugs in the suspect’s pocket, the suspect is in actual possession of the drugs. On the other hand, if the drugs are found in a car that several people have access to, proving constructive possession can be more challenging, as it requires establishing that the suspect had the ability and intent to control the drugs.
In some cases, possession can be attributed to someone even if they do not have physical custody of the object. For instance, if the police find illegal drugs in a house shared by several people, all the occupants may be considered to have constructive possession of the drugs if it can be shown that they all had access to and the intent to control the drugs.
This can also be relevant in cases involving stolen property or contraband goods. For instance, if a person is caught with a stolen item, they could be charged with theft, as they have possession of the stolen item. In contrast, if someone buys a stolen item unknowingly, they may not be charged with theft but could still be required to surrender the stolen property.
This is a crucial element in determining criminal liability, and it is important for both prosecutors and defense attorneys to establish whether the defendant had control or custody over the object in question. If the defendant can show that they did not have possession of the object, it can be challenging for the prosecution to prove the requisite intent for a conviction.
In conclusion, actual possession is a critical concept in criminal law that refers to physical control or custody over something. It is distinct from constructive possession, which involves the ability and intent to control an object. This is crucial in determining criminal liability, particularly in cases that involve the possession of illegal substances or stolen property.
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Last Modified: 04/09/2023