To Be Possessed…

What Does It Mean to “Legally Possess” Something in California?

In criminal cases across California, one legal concept frequently at the center of prosecution and defense arguments is "possession." Whether it's a firearm, a controlled substance, or material depicting child sexual abuse, the question often boils down to: Did this person legally possess the item? And if not, did they knowingly and unlawfully possess it?

As a California criminal defense attorney, I regularly represent clients facing charges related to illegal possession. But what does possession actually mean under the law? Let’s break it down using the most common contraband I see in criminal courts, drugs and guns, to illustrate the key points.

The Legal Definition of Possession

Under California law, possession doesn’t just mean owning or holding something in your hand. Below are some of the categories of possession recognized by the courts:

• Actual possession – You have direct physical control of the item (e.g., a gun in your waistband or a bag of drugs in your pocket).

• Constructive possession – The item is not on you, but you have access to and control over it (e.g., drugs in your glovebox, a firearm in your bedroom drawer).

• Joint possession – You share control or access with someone else (e.g., drugs found in a shared apartment, or a gun in a vehicle with multiple people who claim ownership).

Possession becomes illegal when it involves a prohibited item (like methamphetamine or an unregistered firearm) or when a person is legally barred from possessing it (such as a felon in possession of a gun).

Possession of Drugs in California

California law makes it illegal to possess certain controlled substances without a valid prescription or lawful purpose. This includes substances like:

• Methamphetamine

• Cocaine

• Heroin

• Fentanyl

• Prescription drugs without a valid prescription (e.g., Xanax, Adderall)

To convict someone of illegal drug possession, the prosecution generally has to prove prove:

1. The substance was a controlled substance;

2. The person knew of its presence;

3. The person knew it was a controlled substance;

4. The person had control over it (actual or constructive); and

5. The controlled substance was in a usable amount.

Example:

If police find heroin in the trunk of a car you’re driving, but you didn’t know it was there, you may have a strong lack of knowledge defense. On the other hand, if it’s in your pocket, and your fingerprints are on the baggie, the prosecution may argue you had actual possession.

Possession of Firearms in California

Firearm possession laws in California are complex and strictly enforced. Generally, it is legal to possess a firearm if:

• You’re over 21;

• You’re not a prohibited person (e.g., felon, subject to restraining order, etc.);

• The gun is properly registered;

• The gun is not an illegal weapon (e.g., fully automatic rifles or certain “assault weapons”).

You can be charged with a crime if you:

• Carry a concealed weapon without a valid CCW permit;

• Possess a firearm while prohibited due to a prior conviction;

• Possess an unregistered or stolen firearm;

• Are in possession of a firearm in a prohibited location (e.g., school zones, government buildings).

Constructive Possession Example:

Say you’re staying at a friend’s house, and police find an unregistered handgun in the nightstand of the room you’re sleeping in. If you had access to the room and knowledge of the gun, you could be charged—even if the gun technically belongs to your friend.

Knowledge and Intent Matter

In both drug and gun cases, knowledge is critical. You can’t be guilty of illegal possession if you didn’t know the item was there or didn’t know what it was.

That’s why in many cases, a strong defense focuses on:

• Lack of knowledge;

• Lack of control or access;

• Illegal search or seizure (violations of the Fourth Amendment);

• Mistaken identity or false accusations.

Final Thoughts: What to Do If You’re Accused

Possession charges can carry serious consequences—including jail time, probation, loss of gun rights, and a permanent criminal record. But these cases are sometimes more defensible than they appear, especially when police overstep their bounds or assume guilt based on proximity alone.

If you or a loved one is facing a possession charge in California, it’s essential to speak with an experienced criminal defense attorney right away.

Need Help With a Possession Case?
Contact the Davis W. Hewitt Law Office today for a confidential consultation. We’ll review the facts, explain your options, and fight to protect your freedom.