Switch to ADA Accessible Theme
Close Menu
Atlanta Criminal Defense Lawyers > Blog > Criminal Defense > How “Constructive Possession” Can Lead to Drug or Gun Charges in Georgia

How “Constructive Possession” Can Lead to Drug or Gun Charges in Georgia


There are many criminal offenses, such as those involving drugs or firearms, where a person may be found guilty based solely on possession. And possession can mean either actual or constructive possession. Actual possession means you have direct physical control over the contraband. Constructive possession essentially means you have the ability to exercise control over the contraband even if it is not on your physical person.

Driver and Passenger Both Convicted of Illegal Firearm Possession Following Traffic Stop

Constructive possession can also be joint, meaning the police and the courts can decide that two or more people effectively had possession at the same time. A recent pair of cases from the Georgia Court of Appeals, McAnnally v. State and Byrd v. State, provide a useful illustration. This case involved two people tried and convicted for the illegal possession of the same firearm.

Like many criminal cases, this one began with a seemingly routine traffic stop. An officer observed a truck towing a boat that was weaving erratically between lanes. The officer pulled the truck over. Based on the officer’s observations, they suspected the driver was intoxicated. After performing some field sobriety tests, the officer placed the driver under arrest for DUI.

There was also a passenger in the truck. She did not have a driver’s license, so she could not legally drive the truck away. She told the officer the truck belonged to the driver’s mother, which was true. The officer decided to call for a tow truck and instructed the passenger to exit the vehicle. She refused. After issuing a warning, the officer broke the driver-side window and forcibly removed the passenger. She was then placed under arrest for obstruction.

While searching the vehicle, the police discovered a firearm under the center console. Since both the driver and passenger had prior felony convictions, they were each charged with being a felon in possession of a firearm. They were both found guilty.

The Court of Appeals upheld both convictions. The appellate court said there was sufficient circumstantial evidence to conclude both defendants had “constructive possession” of the firearm when pulled over by the police. Not only was the firearm in a location both of them could access. The Court of Appeals also pointed to the passenger’s behavior in refusing a lawful police instruction to exit the vehicle. The search itself was also permissible given the vehicle had to be impounded and inventoried, as the passenger could not legally drive.

Contact Hawkins Spizman Trial Lawyers Today

These cases illustrate how it is not just drivers who may face legal consequences from a traffic stop, but also passengers. That is why everyone in the car should remember their right to remain silent when questioned by police. And if you are charged with a crime, you need to speak with an experienced Georgia defense attorney. Contact Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.



Facebook Twitter LinkedIn