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Can You Be Charged with Possession in Arizona Without Physically Holding Contraband?




In Arizona criminal law, the legal concept of “possession” is defined with precision yet encompasses a broad range of scenarios. According to Arizona Revised Statutes (A.R.S.) 13-105 (35), to "possess" means "knowingly to have physical possession or otherwise to exercise dominion or control over property." This statutory definition is the cornerstone of understanding possession crimes in Arizona. While A.R.S. 13-3408, which addresses the possession of a narcotic drug, serves as a notable example of such crimes, our focus here extends to the broader interpretation and implications of 'possession' as defined in A.R.S. 13-105 (35). This article aims to unravel the complexities of this definition, particularly exploring the concept of 'constructive possession' — a key legal principle that expands the understanding of possession beyond mere physical contact. Delving into this concept is crucial for understanding various legal scenarios, including drug possession, possession of firearms by prohibited possessors, and possession of other illegal materials such as child pornography.


Section 1: The Elements of Possession Crimes


The legal definition of 'possession' in Arizona, as outlined in A.R.S. 13-105 (35), is essential for comprehending possession crimes. This statute defines possession as not just having physical possession of an item, but also exercising dominion or control over it. This broad definition significantly impacts the interpretation of possession in a variety of legal contexts.


For instance, under A.R.S. 13-3408, an individual can be charged with possession of narcotics even if they are not physically holding the drugs. If the individual has control over the area where drugs are stored, such as a car, home, or personal locker, they could legally be considered to possess those drugs. The same principle applies to other possession crimes, such as illegal possession of firearms or holding other types of contraband. The key factor is control or dominion over the area where the item is located, not necessarily direct physical contact.


In essence, this expanded definition of possession reflects the law's recognition that control and access can be as incriminating as physical possession. It highlights the nuanced nature of possession crimes and the importance of a detailed legal understanding in these cases.


Section 2: The Basics of Constructive Possession


To differentiate constructive possession from actual possession, actual possession means having physical control of something, such as holding illegal drugs in your hand or pocket. Constructive possession, on the other hand, might involve having drugs in a locked drawer or a safe to which you have the key, or in a shared living space where you have access and control.


A classic example of constructive possession is a scenario where illegal narcotics are found in a car driven by multiple people. Even if the drugs are under a passenger's seat, both the driver and the passenger may face possession charges if it can be established that they both had access and control over the area where the drugs were found.


Understanding constructive possession is crucial in legal defenses, as it broadens the criteria for what constitutes possession. It’s not about where the item is, but rather about the access and control one has over the location of that item.


Section 3: Constructive Possession in Other Possession Crimes


Constructive possession plays a pivotal role not only in drug-related offenses in Arizona but also in cases involving illegal possession of firearms, especially by prohibited possessors, and possession of other contraband, such as child pornography. The overarching principle of constructive possession—that control or access equates to legal possession—applies across these various scenarios.


In drug offenses, as previously discussed, individuals can face charges for narcotics found in locations they control or have access to, like shared residences or vehicles. This same principle extends to firearm possession cases. For example, a prohibited possessor can be charged if a firearm is found in a shared living space or a vehicle, even if they don't have direct physical contact with the firearm.


Similarly, in cases involving possession of illegal materials like child pornography, an individual could face charges based on materials found on shared or accessible digital devices. The key legal question is whether the individual had dominion or control over the storage medium or location where the illegal material was found, not necessarily direct physical possession.


These examples highlight the complexities and far-reaching implications of constructive possession in Arizona law. Whether it's drugs, firearms, or other contraband, the concept challenges traditional notions of possession, underscoring the need for an in-depth legal understanding and strategic defense in such cases.


Section 4: Legal Defenses and Considerations


Navigating charges of constructive possession requires a nuanced understanding of the law and a strategic approach to defense. In cases of constructive possession, the defense often revolves around challenging the prosecution's assertion of control or dominion over the contraband.


One common defense is the lack of knowledge or intent. An individual may argue that they were unaware of the presence of the contraband in the shared space or vehicle, or that they had no control over that area. This defense hinges on proving the absence of knowledge or intent to possess the contraband.


Another defense strategy involves questioning the evidence linking the accused to the contraband. This can include challenging the reliability of testimony or the legality of the search and seizure that led to the discovery of the contraband.


Moreover, demonstrating lack of exclusive access to the area where the contraband was found can be a vital defense. In shared spaces, proving that multiple individuals had access and control can dilute the argument of constructive possession against a single individual.


Legal representation is critical in these cases. An experienced attorney can analyze the specifics of the situation, explore all potential defense avenues, and present a case that effectively challenges the assumptions of constructive possession. This expertise is invaluable in navigating the complexities of possession charges and ensuring a fair legal process.




Understanding the concept of constructive possession is crucial in Arizona's legal landscape, particularly in the realm of possession crimes. As we've explored, constructive possession extends beyond physical control, encompassing scenarios where an individual exercises dominion or control over a space where contraband is located. This broad interpretation applies to various scenarios, from drug and firearm possession to the possession of other illegal materials.


The complexities of these cases highlight the necessity for comprehensive legal knowledge and strategic defense. Whether challenging the presumption of control, demonstrating a lack of knowledge, or questioning the legality of evidence, skilled legal representation is vital.


As a firm deeply versed in the nuances of Arizona law, we are committed to providing our clients with the expertise and representation needed to navigate these intricate legal matters. If you or someone you know is facing possession charges, we encourage you to reach out for knowledgeable and effective legal assistance.


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