Possession (Substances – Criminal)

By Minnesota Marijuana Attorney Thomas Gallagher.

Can mere possession of a thing be defined by the government as a crime?  Yes, within the last 100 years or so, we have been afflicted with numerous criminal possession laws relating to substances used by people safely for millions of years (marijuana, alcohol, opium, etc.)

Possession of certain forbidden items, or contraband, can be made a crime – based in part upon the identity of the legally prohibited thing.  Examples include certain drugs, certain guns and firearms, etc.  To possess certain items can also be made a crime depending upon characteristics of the person in “possession” of them.  An example of this might be an opiate drug in the hands of a medical doctor in a hospital; or an allowed quantity of marijuana with a cancer patient in compliance with a medical marijuana law.

Whether a person is “in possession” of a thing can be an important factual and legal issue in many kinds of criminal law cases, including criminal drug possession (controlled substance) cases, i.e. marijuana, possessing of a controlled substance, of cocaine, etc.  It can also be an issue in criminal cases relating to possession of other types of contraband items.

What does “possession” mean?

To understand what it means in the context of criminal law, one must first understand something of the basic elements that together define a crime.  Every crime, defined by statute and sometimes refined by court interpretation, is made of several “elements.”  The government’s lawyer must first produce evidence susceptible to an interpretation that could support the existence of each “element” of the crime, then must try to convince the fact-finder (i.e. jury) beyond any doubt, that its evidence is true.

Every crime must at a minimum include at least three elements:  1) identity; 2) mens rea; and, 3) actus reus.  From the Latin, mens rea is “guilty mind” – guilty knowledge or intention to commit a prohibited act.  Actus reus is “the prohibited act.”  Before a person can be found criminally liable for violating a law, due process requires that a statute must put the person on notice of just which acts are specifically prohibited and subject to criminal law remedies.  The mens rea element means that, before a person can be found criminally liable for violating a law, that person must have guilty knowledge or intention to commit the prohibited act.

When it comes to crimes of possession, issues of proof of both mens rea and actus reus can be quite important.

First, is the question of actus reus, or the prohibited act element.  Did the accused person actually possess the contraband?  What evidence is there to suggest that the person actually possessed a thing?  If an item was found in their pocket, would that be evidence suggesting actual possession?  No doubt the state would argue this.  What if an item was found not on the person, but in some proximity?  If the item was not in the person’s actual possession, government’s and prosecutors have come up with the argument of “constructive possession,” based upon solely circumstantial evidence.  “Constructive” is not “actual.”  It is a legal fiction – a construct.

Next, is the question of mens rea, or guilty knowledge or intention to commit the prohibited act.  Where the prohibited act is the possessing of an item, the person could not be guilty of criminal possession where the person did not know the item was there, or what it was.  A real world example of this could be what have been called “blind mules” – unsuspecting travelers crossing an international border with a package of illegal drugs magnetically attached to their car.  The would-be smuggler follows the “blind mule” at a safe distance.  If the mule is caught, the smuggler goes on freely.  If the mule is not caught, the smuggler follows them until she can safely remove the contraband from the unsuspecting mule’s vehicle – at a tremendous profit.  Now, is the “blind mule” guilty of possession of the illegal drugs in their car, even though the “mule” had no knowledge of it?  The answer is “no.”  (Whether a jury could wrongly find the mule guilty is another matter.)  To say “knowing possession” would be redundant.  Why?  For criminal law purposes, “possession” requires and must include “knowledge” of the thing possessed.

Criminal possession is defined by courts as contraband within the “dominion and control” of the accused person.  Even if a person knows that an item is contraband and knows where it is located, that is not enough to prove that the item was within that person’s “dominion and control.”

Ownership of property may at times coincide with dominion and control over an item, but not always.  If your neighbor borrows your lawn mower for a few days, you still own it but for those days it is no longer within your dominion and control.

Another basic element of any crime is identity – whether, even if a crime was committed, was the accused person the same person who committed it?

In criminal possession cases, a different kind of identity can also be a key issue of proof – an additional element.  This is the identity of the contraband.  In drug cases, is the alleged cocaine, for example, really cocaine?  Or is it really powder deodorant, as in one recently reported case.

The law is a seamless web.  While we categorize facts and legal concepts for purposes of analysis, is real life things are seldom so neat and clean.  When it comes to criminal possession laws, the elements of mens rea, actus reus, and identity of the item sometimes overlap.  For example, if you knew that you had a gun in your home, knew you had purchased it for a fair price, but did not know that the serial number on the gun was listed as stolen – does that raise the more the issue of mens rea or of “identity of the item?” Both.  What about the transitory possessing of an item that does not belong to you, but to someone else?  Evidence of intent to exercise dominion and control may be lacking.