Understanding “Constructive Possession” in Drug and Gun Charges

When it comes to drug or gun charges in Arizona, you don’t have to be caught with an item in your hand, or even in your pocket, to be charged. In many cases, prosecutors rely on a legal concept called constructive possession, which allows them to pursue charges even if the drugs or weapon belong to someone else.

If you had access to the item, knew it was there, and had some control over it, you can still be charged as if it were yours. Constructive possession is one of the most misunderstood and risky concepts in criminal law, especially for people who aren’t involved in a crime but are only in the vicinity of those who are.

What Is Constructive Possession?

In simple terms, constructive possession means you had knowledge of an item and the ability to control it, even if it wasn’t physically on you at the time.

This is different from actual possession, where the item is in your hand, pocket, waistband, or clearly under your control.

In constructive possession cases:

• You don’t have to be holding the item
• You don’t have to own it
• But you knew about it, and you had access or control

That’s enough for prosecutors to pursue charges under Arizona law.

Real-World Examples

Driving a Drug Dealer

You’re behind the wheel, doing a favor for a friend by giving them a lift. You know the friend sells drugs. You don’t have any drugs on you, but you know what’s in the backpack in the backseat. You’re pulled over, and officers find a large quantity of pills packaged for sale in your friend’s possession.

Even though you didn’t own or touch the drugs:

• You had control of the vehicle
• You knew what was being transported
• You were actively helping move the drugs from one location to another

That’s enough for prosecutors to charge you with constructive possession, and potentially possession for sale or facilitating a felony (ARS 13-1004), depending on the circumstances.

Living with a Gun You Legally Can’t Have

You’re a prohibited possessor due to a prior felony conviction. You live with a roommate who legally owns several firearms. The guns are kept in a common area, like a hallway closet or an unlocked drawer that you both have access to. Even if your roommate owns the guns and you never touched them:

• You knew they were there
• You had the ability to access or control them

You could be charged with unlawful possession of a firearm under Arizona’s constructive possession rules, especially if police find evidence suggesting you had access, like text messages, social media photos, or unsecured storage.

Legal Consequences of Constructive Possession

The penalties for constructive possession are often the same as if you were caught holding the drugs or weapon yourself. Prosecutors don’t have to prove ownership, just knowledge and control.

Drug Charges (ARS 13-3407, 13-3408)

• Possession of narcotic or dangerous drugs is typically a Class 4 felony
• Possession for sale can be a Class 2 or 3 felony, depending on the drug and amount

Gun Charges (ARS 13-3102)

• A prohibited possessor with access to a gun can face a Class 4 felony
• Charges can stack if there are other offenses involved (e.g., drugs + guns)

Not being in actual possession may lead to reduced charges or make prosecutors more open to a plea deal, but you shouldn’t expect to avoid charges altogether just because you didn’t physically possess or own the drugs or firearm.

Why These Cases Are Complicated

Constructive possession charges often come down to:

• Where the item was found
• Who had access to that area
• What evidence links you to control or knowledge of the item

If multiple people were in the car or house, or if the drugs or gun were in a shared space, the state still has to prove you had a clear connection to it. That’s where an experienced defense lawyer can challenge the prosecution’s assumptions and whether the evidence really backs up their narrative.

Facing a Possession Charge in Arizona?

Whether you were actually caught with drugs or a gun, or just near them, you could still face serious criminal charges under Arizona law.

Michael Alarid III is an Arizona Board-Certified Criminal Defense Attorney with experience challenging possession charges across the state. If you’ve been accused of possessing drugs or a firearm you didn’t actually own, don’t wait to build your defense. Call (602) 818-3110 for a free case evaluation.