Is Constructive Possession of a Firearm Hard to Prove in PA?

by | Oct 31, 2022

Prosecutors must demonstrate that you possessed a firearm with evidence of either actual possession or constructive possession.

Actual possession is easier to prove because it means the firearm was on your person, like in your hand, in your waistband, or in a backpack you were carrying, for example. However, proving constructive possession is different. It requires them to prove that you had “conscious dominion” over the firearm to prove constructive possession in Pennsylvania. Proving “conscious dominion” requires them to present evidence that you had: 1) the power to control the firearm and 2) the intent to exercise such control. They can imply these two elements based on the case’s comprehensive facts and circumstances.

In some cases, constructive possession can be hard to prove in PA, especially when built on circumstantial evidence and shaky testimony. However, all criminal charges are unique, and what could be tough to prove in one case may be very straightforward in another. Ensure you get legal advice as soon as possible to devise a strategy against charges asserting constructive possession.

In This Article

The Philadelphia firearms defense lawyers at Shuttleworth Law explain how constructive possession works and the difficulty of proving this type of assertion. We wrote this blog post for people facing constructive possession allegations so that they have more information about potential outcomes.

Defining Constructive Possession

Constructive possession is a legal doctrine that assigns possession over objects, such as drugs or firearms, to someone even if the objects were not within their direct, physical control. In the context of criminal law, Commonwealth prosecutors may assert constructive possession in your case to get a specific conviction and increase minimum penalties.

Constructive Possession Example

For example, if you are arrested for drug trafficking, and police find a firearm in your vehicle, prosecutors could assert that you had constructive possession of it even though the gun was not within your direct control. However, if the firearm was impossible to access and cannot be tied in with drug trafficking, then proving constructive possession is challenging for them.

Types of Criminal Possession in PA

PA‘s Crimes and Offenses laws under Title 18 recognize two types of possession, including constructive and actual. In contrast, actual possession asserts that someone had direct, physical control over the firearm. Actual possession may be more straightforward to prove for prosecutors since they rely on more objective elements to secure a conviction.

Proving or Defending Constructive Possession

There are two sides to every criminal matter: 1) what the state says you did, and 2) what they can prove. The only side that really matters, in the end, is what evidence they have. A gun crimes defense firm will use this knowledge as applicable to weaken the prosecutor’s theories, evidence, and assertions to refute constructive possession allegations.

Let’s take a closer look at the prosecutor’s burden of proof and your right to defend yourself when facing these types of accusations:

Burden of Proof

Prosecutors hold the burden of proof when asserting constructive possession. As determined in Gladden 665 A.2d 1201 (Pa. Super. 1995), prosecutors must prove that you had constructive possession of a firearm by meeting the following elements:

  • Element 1. You had the power to control the firearm: If prosecutors build constructive possession of an inaccessible firearm, they may not have a strong case. However, finding a partially discharged gun next to 10 pounds of cocaine in your motor vehicle can strengthen their assertions.
  • Element 2. You intended to exercise such control: This element is tough to prove. What evidence do prosecutors have that you intended to control the gun? Even if they find your fingerprints on the handle, that does not necessarily indicate an intent to “exercise such control.”

If prosecutors cannot prove both of these elements beyond a reasonable doubt, then you should not face a conviction and related penalties. They can build their case with supporting physical evidence, testimony, digital forensics, and other forms of admissible evidence. However, a skilled criminal defense lawyer sees things differently and will work to refute Commonwealth allegations against you.

Defending Constructive Possession Firearms Charges

Under Title 18, Chapter 61, Subchapter A, Violations of the Uniform Firearms Act (VUFAs) generally and directly involve gun crimes, including possession, sales, and transfers. Constructive possession is a frequently raised issue and can apply to a wide range of charges where a firearm may have been involved, such as burglary, murder, and drug crimes. If prosecutors are gearing up for this type of case, getting legal help to defend your freedom is critical.

Possible constructive possession defenses may include:

  • You did not knowingly possess the firearm
  • It was someone else’s firearm or you didn’t control it
  • Police conducted an illegal search and seizure
  • Prosecutors cannot prove you had intent to use the firearm
  • You had legal authorization to keep the firearm on your premises
  • You have a proven alibi
  • Civil rights violations occurred during the investigation or arrest
  • You had a permit to carry the firearm
  • Other legal defenses that are unique to your case

Mounting a formidable legal defense is critical under these circumstances. Otherwise, you could end up accepting responsibility for an unproven crime. Prosecutors believe they have a strong case against you and will attempt to hold you accountable based on those beliefs and their alleged evidence.

However, they do not always get their cases right. Procedural, constitutional, and legal errors can and do occur on their end. Hire a legal team with the experience and resources necessary to explain how and where they may have gotten it wrong in your case. Even if you think they have irrefutable evidence against you, you do not know if they preserved it properly or had permission to obtain it in the first place. Your criminal defense lawyers can determine if this happened to you.

Shuttleworth Law Defends Constructive Possession Matters

The Philadelphia firearms defense lawyers at Shuttleworth Law are ready to step in, protect your rights, and investigate your charges. Our legal team has helped thousands of people clear their names. Get trusted, award-winning legal advice at no cost or obligation by scheduling a Free Case Evaluation now at (215) 774-1371 or message us online.

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