Possession (Substances – Criminal)

By Minnesota Drug Possession Attorney Thomas Gallagher

Drug possession - coffee
Drug possession – coffee

Thirty years of defending people in possession cases has deepened the understanding of Drug Possession Attorney Thomas C. Gallagher.  Now you can benefit from that.  Let’s explore criminal possession laws, cases and attitudes.

Arguing a motion to dismiss to a judge requires a thorough legal analysis applied to the facts.  When connecting with a jury, justice and fairness become paramount.  Either way, we need to dig deeper into the meaning of a word that can ruin a person or save them.

Possession alone as a crime

Can the government define mere possession of a thing, as a crime?

Only within the last 100 years or so, have we been afflicted with criminal possession laws relating to substances used by people safely for millions of years (marijuana, alcohol, etc.)

Identity of the prohibited object
marijuana bud possession
Proof of identity

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 artifacts, etc.

As a result, the prosecutor must have evidence identifying a prohibited substance with certainty.

Not all cannabis is illegal to possess in Minnesota, for example.  Legal forms include Epidiolex (marijuana CBD), Drabinol (prescription THC), hemp-CBD, hemp food products, legal medical marijuana.  And a “small amount” of non-resinous-form marijuana is a petty misdemeanor – not a crime.

The prohibited person
Some animals are more equal than others
Some animals are more equal than others

The characteristics of the person can make possession a crime.

Some people are more equal than others when it comes to drug possession.

The same drug may be legal in the hands of one person but criminal in the hands of another.

An example of this might be an opiate in the hands of a medical doctor; or of marijuana with a cancer patient under a medical marijuana law.  What about someone who discovers contraband and turns it in to police?  Guilty?


Possession of the same drug may be legal in one place and illegal in another.  For example, alcohol is legal for adults in Minnesota in most places, but not if in an open container in a car.

Criminal penalties for drug possession may be more severe near a school or park.

Person <– relationship –> Thing

Criminal possession depends upon the relationship between a person and a thing.  The person must be a prohibited person.  The thing must be a prohibited thing.   If we have both, then the relationship must meet the minimum criteria for criminal possession.

What does “possession” mean?

Whether a person is “in possession” of a thing is an issue in many kinds of criminal cases, including “controlled substance” possession cases, i.e. marijuana, possession of cocaine, etc.

It can also be an issue in criminal cases for possession of other types of contraband items.

Part of the work of a  possession attorney is to explain what is, and what is not, criminal possession.

It’s elementary

To understand what it means in the context of criminal law, one must first understand the basic elements that together define a crime.  Every criminal statute is breaks down each crime into several “elements,” or parts.  If even one element is missing, there is no crime.

The government’s lawyer must first produce evidence susceptible to an interpretation that could support each “element” of the crime.

Then the prosecutor must try to convince the fact-finder (i.e. jury) beyond any doubt, that its evidence is inconsistent with any inference of innocence.

At least three elements to every crime
Possession felony?
Possession felony?

Every crime must 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 remedies.

The mens rea element requires that a person must have guilty knowledge or intention to commit the prohibited act, before a person can be found guilty of a crime.  When we speak of criminal intent, we refer to general intent – intent to do the prohibited act.  (Specific intent is a term for a higher level of intent – intent to cause a result, such as intent to cause death in an intentional murder case.  Specific intent elements are rare in drug cases.)

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

The prohibited act element

First, is the issue 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, is that evidence of actual possession?  No doubt the state would argue so.

What if an item was found not on the person, but some distance away?

If the item was not in the person’s actual possession, government’s and prosecutors may argue “constructive possession,” based upon solely circumstantial evidence.  “Constructive” is not “actual.”  It is a legal fiction – a construct.

The intent element
lamp knowledge
Lamp of Knowledge

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.

Consider a real world example of this.  “Blind mules,” unsuspecting travelers cross 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 police catch the durg mule, the smuggler keeps going undetected.

If police do not catch the mule, the smuggler follows until she can safely remove the contraband from the unsuspecting mule’s vehicle – at a tremendous profit.  (Film Noir fans can refer to the 1958 film The Lineup for a cinematic portrayal of this technique.)

Is a blind mule guilty of criminal possession of drugs in their car?

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” is redundant.  Why?

Without knowledge, there can be no possession crime

For criminal law purposes, “possession” requires and must include “knowledge” of the thing possessed.  A person is not criminally responsible for possessing a thing unless she knows of its existence, regardless of where found.  A possession attorney must be able to explain this to a jury in a way that jurors can understand.

But possession is more than just knowledge

Courts define criminal possession as contraband within the “dominion and control” of the 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.”

Criminal possession is “knowledge” plus “dominion and control,” in legal language.  That’s the equation.  Without either one, it’s not criminal possession.

Ownership is not possession – just a relationship
Dominion and control
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.

Is it within your dominion?  Dominion connotes place relationship to place.  Is it within your control?  Control implies it is near, within immediate reach.

The identity element

Another basic element of any crime is identity.   Even if someone committed a crime, was the accused person the one who committed it?

But in drugs cases, identity of the contraband goes to the elements of prohibited act and intent
Ownership is not possession
Ownership is not possession

In criminal possession cases, a different kind of identity can also be a key issue of proof.  This is the identity of the contraband. 

Is the alleged cocaine, for example, really cocaine?  Or is it really powder deodorant, as in one recently reported case.

If the alleged cocaine is only powder deodorant, the proof of prohibited act fails.  It’s not contraband.

And similarly, if the accused knowingly possessed powder deodorant, there is no criminal intent.

The prosecutor must introduce the alleged contraband into evidence at trial.   And a witness must present scientific proof of the identity of the substance.  If not, or if evidence is weak, not-guilty.

Defense analysis

While we categorize facts and legal concepts for purposes of analysis, in real life things seldom fit so neatly.

When it comes to criminal possession laws, the elements of mens rea, of actus reus, and of identity of the item, overlap.

Transitory possession – hot potato

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.

Thomas Gallagher, Minneapolis Drug Possession Attorney
Thomas Gallagher, Minneapolis Drug Possession Attorney

Possession Attorney Gallagher defends people accused of marijuana possession, drug possession, every kind of criminal possession charge.  If people understand the law better, fewer will be giving evidence.  And if more criminal lawyers had a solid understanding of drug possession laws, fewer people will be convicted.

Question about drug possession?  You can call Minneapolis drug possession attorney Thomas Gallagher at 612 333-1500