It might be because I'm drunk as a skunk right now, but I'm a bit confused.
I don't know what you're confused about, but if you can explain what from my post is confusing, or the links provided is confusing I'll try to clear it up for you.
Once again, people are repeatedly posting comments about "constructive possession" and referring to the ability of a person to construct an item. However, that is not the meaning of constructive possession. Constructive possession refers to the ability to excercise dominion and control over an object. Therefore the object(s) must actually exist for you to be in possession of it, whether it's constructive possession or physical possession.
Again, I'll refer to my example from one of the links - Cocaine base (aka crack) v. powder cocaine (NOTE:
I'm not interested in debating the merits of the drug laws, just trying to provide an easy to understand example). The sentencing guidelines under federal law are much different for crack v. powder. Currently 50g or more of crack carries a mandatory minimum sentence of eight years. However, the same mandatory minimums do not kick in for powder until you hit 5 Kilograms. Therefore if someone has 2 ounces of crack (56g) for distribution they are looking at a 8 year mandatory minimum sentence if convicted in federal court. However if someone has an ounce of powder cocaine (28g) they are not subject to that same mandatory minimum sentence. Therefore if a cop or prosecutor wants to put someone away for a long time it's best to be able to charge them with crack v. powder cocaine.
So here's an example:
Joe Blow is suspected of being a crack dealer and during an investigation an undercover cop buys 1 ounce of crack (28g) from Joe Blow at his apartment. Based on this info and other info obtained during the investigation the cops obtain an arrest warrant for Blow, and a search warrant for his apartment, when they serve the warrant Blow does not have any drugs on his person, but in the next room officers find 2Kg of powder cocaine, large amounts of baking soda, scales, glass containers with crack residue, etc. However, despite the obvious intent of Blow to cook up that 2Kg into crack at the time of his arrest it is still just powder cocaine.
Because the drugs were not physically on his person, but Blow was the only one in the apartment, and there is other evidence to show the apartment is his and he has been using it for his drug dealing, he is in constructive possession of the powder cocaine, because he has power to control and intent to control the cocaine. However, despite his obvious intent, ability, and the necessary materials to cook the powder cocaine into crack, he cannot be charged with being in possession 50g or more of crack cocaine, and because his sale of crack to the undercover cop amounts to less than 50g he will not face that 8 year mandatory min at sentencing.
You see Blow has the intent to manufacture more than 50g of crack, and has all the materials necessary to do that, but is NOT in constructive possession of crack because it is not actually crack. He can only be charged with the 28g of crack he sold, and the 2Kg of powder he constructively possessed at the time of his arrest.
I hope this makes it clear to you that the rantings about constructive possession often seen here are incorrect. The items defined by law as being contraband must actually exist for the person to possess them, whether constructively or physically. For those that haven't actually looked at the definitions of constructive vs. physical (aka actual) possession it might seem confusing, but if you actually read the definitions and how they are applied in the case law it should be easily understood.
However, as I've said before, if this is more than a hypothetical discussion it is best to consult with a lawyer who has experience with local, state, and fed firearms laws.
rg and peruse the Kwan case
