Baum Law Offices, LLC – Attorney Matthew Baum

Legal Definition of Possession

Based on my experience working with defendants in thousands of Maryland possession cases, most non-lawyers are surprised to learn that the legal concept of possession differs from the dictionary definition of possession. Where the typical dictionary definition equates possession with ownership, generally speaking, the legal definition is much broader than that. Read on for an introduction to the legal definition of possession as it is used in Maryland courts in cases concerning drugs, alcohol, firearms, and other illegal items.

Introduction to Maryland Possession Cases

It’s critically important to have a good understanding of the legal definition of possession because a number of the most frequently prosecuted criminal charges in Maryland courts hinge on the concept of possession. The charges I’m referring to deal with a wide range of objects and activities. Among the most common, Maryland possession laws address certain kinds of guns, possession of a controlled dangerous substance (drugs), minors in possession of alcohol, possession of a firearm by someone convicted of a disqualifying crime, and possession of burglar’s tools. The legal concept of possession also plays an important role in some theft cases. With this in mind, this post will attempt to shed some light on the legal definition of possession as it is currently used in Maryland.

Actual Possession

The legal definition of possession has two distinct categories. The one that most closely corresponds with the dictionary definition of possession is known as actual possession. Actual possession means that the person has physical custody or physical control over the object in question. Actual possession cases typically involve items in the defendant’s hands, pockets, or purse or backpack. For example, someone found to have illegal drugs in his pocket by the police can be charged with Possession of a Controlled Dangerous Substance. Someone caught with lock picks in the backpack he was wearing can be charged with Possession of Burglar’s Tools. Someone below the age of 21 caught with an open beer in his hand can be charged Possession of Alcohol by  a Minor. Examples such as these show where the legal concept of actual possession corresponds with the commonly known dictionary definition of possession.

Constructive Possession

The second type of possession is known to legal professionals as constructive possession. Constructive possession is the legal tenet that a person possesses something when he has power or control over it –even if the thing is not in his immediate physical control. The legal definition of possession includes constructive possession. In my experience working with defendants, the concept of constructive possession often strikes the non-lawyer as counter-intuitive. Many defendants I’ve represented in the past have been under the mistaken belief that if the object was not in their hands or in their pockets then they could not be charged with possession of that object. This is incorrect. Under a theory of constructive possession, a person can be charged with possession when, based on all of the surrounding circumstance, the object is apparently within that person’s control. For example, the driver of a car found to have drugs in the car’s trunk can be charged with Possession of a Controlled Dangerous Substance. Similarly, when a search warrant for a house turns up drugs, individuals in that house can be charged with Possession of a Controlled Dangerous Substance. Examples such as these show where constructive possession is a much broader concept than the dictionary definition of possession.

Circumstances of Possession and Defending  Constructive Possession Cases
Maryland possession law

Maryland possession laws are laid out both in Maryland statutes and in the rulings of appeals courts.

Law enforcement officers and prosecutors get to exercise tremendous amounts of discretion when it comes to charging and prosecuting constructive possession cases. While the body of appeals court case law gives the police, the lawyers, and the courts some general guidelines, there are very few bright line rules. Hence constructive possession cases are often defendable in court. In cases where a defendant is charged with possessing an illegal object based on a theory of constructive possession, the defense lawyer’s job is to look closely at the circumstances under which the defendant was charged. Where was the defendant? Where was the object that he is alleged to have possessed? Did the defendant know that the object was there? What surrounding facts indicate that he knew it was there? Did the defendant exert or have the capacity to exert control over the object? Was another person or were other persons more likely to have been in control? Could someone else’s control have been exclusive? A good defense analysis of a constructive possession case should take into account all of the circumstances surrounding the case and should make use of current case law to undermine the state’s case for possession. Ultimately, the prosecution carries the burden of proving each element of any possession crime beyond a reasonable doubt.

Matthew Baum is a defense lawyer with offices in Baltimore, Catonsville, and a Columbia, Maryland. As a part of his criminal defense practice,  he has represented more than one thousand defendants charged with possessing something illegal. Many of these defendants were charged on a theory of constructive possession. If you or someone you care about is facing a possession charge in a Maryland court, or if you are simply wondering how the legal definition of possession applies to your case, you are invited to call or email Baum Law Offices for a free consultation. Baum Law Offices can be reached at (410) 929-3435. All inquiries are confidential and private. With that said, please do not send sensitive personal information or factual accounts of your case via email because email messages may not be private.