Possession is a term we see regularly in our judicial system. In the criminal defense world, it is often in conjunction with guns, drugs, and the like.

Under Georgia law, “possession” is generally defined as having control, ownership, or the right to control an item, either directly or indirectly. Georgia recognizes two types of possession: actual possession and constructive possession. “Actual possession” occurs when a person has direct physical control over an object. “Constructive possession” occurs when a person, though not in physical contact with an item, knowingly has both the power and intention to exercise control over it. Let’s go through two different hypotheticals.

Hypothetical 1) Possession of a Firearm

Example A – Actual Possession:

If an individual is found with a firearm in their waistband during a traffic stop, they are in actual possession of the firearm.

Example B – Constructive Possession:

If a firearm is found in the glove compartment of a car that a person is driving, and they admit knowing it was there and having access to it, this may constitute constructive possession — even though they weren’t physically holding it.

Key Point: Constructive possession requires knowledge and control.

 

Hypothetical 2) Possession of Narcotics

Example A – Actual Possession:

If someone is caught with a bag of cocaine in their jacket pocket, that’s actual possession.

Example B – Constructive Possession:

If illegal drugs are found in a shared apartment, hidden in a drawer in a common area, a resident who knew the drugs were there and had control over the space may be charged with constructive possession, depending on the facts.

Important Consideration: In drug cases, prosecutors must prove beyond a reasonable doubt that the accused knowingly possessed the drugs — not just that they were nearby.

 

Here’s a helpful cheat sheet:

Type of Possession	Definition	Example (Firearm)	Example (Drugs)
Actual Possession	Direct physical control	Gun in waistband	Drugs in pocket
Constructive Possession	Control without physical contact, but with knowledge and access	Gun in glovebox of driver’s car	Drugs hidden in a room the person controls

If you’re charged with possession of any sort, give our office a call today to talk to one of our experienced attorneys at (404)581-0999.