It is not uncommon for a client to be confused when they are accused of possessing a drug. While the average person might think that “possessing” an object means you have physical control of the object, the law has a different definition of “possession.” There are two ways an individual can possess drugs according to the law in Illinois: actual possession and constructive possession.
Actual possession exists when you knowingly have total, exclusive, and immediate physical control over an object. This is the type of possession that comes to mind for most people when the word “possession” is used. An example of actual possession is a pen in my hand– it is physically in my hand, I know it is in my hand, I can use it immediately if I want, and as long as it is in my hand, other people cannot use it. However, the object doesn't need to be in your hand for you to have actual possession over it—even though the car keys in my pocket aren't in my hands, I have actual possession of them as they are physically in an object (my pants pocket) that is on my body that I exclusively control, I know the keys are in my pants pocket, and if I needed my keys, I could pull them out of my pants pocket in a couple of seconds. It should be noted that exclusive control does not mean that you are necessarily the only person who has control over the object, but that it is not accessible to the general public—for example, if you are sharing your french fries with a friend, the fries would still be exclusive as other people walking by don't have control over the fries.
Constructive possession, on the other hand, exists when you might not have control over an object at that moment, but you have the intent and capability to maintain control and dominion over the item. An example of constructive possession might be your car when you are inside of a building—you can't use the car from inside the building, but you still maintain it is your car and you have the keys needed to use the car. Another example of constructive possession might be a toothbrush in your bathroom—while you don't have it in your hand right now, you intend to control where your toothbrush is, who uses it, and how it is used, and if you were to walk into your bathroom, you could pick up the toothbrush and use it to brush your teeth. Constructive possession does not require exclusive control—that means that just because you are not the only one who has access to a locked room does not mean you will defeat an allegation of constructive possession.
Because there are two types of possession under the law, this means that the prosecution will need to show either actual possession or constructive possession for you to be found guilty of possession of a drug. Arguing that you did not have the drugs in your hands or on your body may not be enough to convince a judge or jury that you did not possess a drug for you could have been constructively possessing drugs. Your strategy of defending against a possession charge will likely depend on what strategy the prosecution will use. Because of this, it is important to be able to predict under what theory the prosecution will argue that you possessed a drug: actual possession, constructive possession, or both. If the prosecution will argue actual possession of a drug, you will want to show that you did not have either exclusive or immediate control of the object, and if the prosecution will argue constructive possession of a drug, you will want to show that you did not have the intent or capability to control the item.
The attorneys at John W. Callahan have years of handling drug possession cases under their belt and know the best ways to fight against all sorts of drug possession charges. If you are facing a drug possession charge and want skilled representation, contact the attorneys at John W. Callahan, Ltd.