Possession – Not as Simple as You’d Think

There are dozens of crimes involving possession of something prohibited by law.  Controlled substances and weapons are the most common items where possession is regulated.  Possession seems pretty straightforward, but in fact, it’s quite the opposite.  This post will examine the different ways to possess an item and legal defenses to possession.

Possession – What it is

As defined in the Wisconsin Criminal Jury Instructions, possession means that the defendant knowingly had actual physical control of the item.  This definition can be broken down into two main sections.  First is the idea of knowledge.  You cannot be convicted of violating a possession law if you don’t know that you possessed the item.  To use a real-world example, let’s say a gentleman offers a female companion his jacket to keep her warm.  In one of the pockets is a small bag of marijuana.  Even though she has actual physical control of the marijuana in the coat pocket, if she does not know it is there, then she did not knowingly possess the item.

The second section is having actual physical control of the item.  Wisconsin courts have tried to narrow this definition.  First, merely being in the presence of the item, having knowledge of the item, and having access to the item, are insufficient to constitute possession.  What this means is that having the opportunity to possess an item, standing alone, does not establish possession.  There must be an exercise of some dominion or control over the item to establish possession.

It’s not in my pocket, but I still possess it?

The jury instructions also state that an item is in a person’s possession if it’s in an area over which the person has control and the person intends to exercise control over the item.  This instruction implies that the person still has knowledge of the item, but modifies the “actual physical control” portion of the definition.  Again, to use a real world example, let’s say a felon has a gun in his pocket when he gets into his car.  Not wanting to have the gun accidentally discharge, he places the gun under his seat while driving.  Here, he does not have “actual physical control” of the gun.  But he does have control over the area where the gun is located and he intends to exercise control of the gun.

But I didn’t buy the item!

Ownership does not matter when dealing with possession.  The only thing that matters is that the person exercises control over the item, either by actual physical control or by the intent to exercise control.  Possession can also be shared between two or more people.  A common example is when officers find drug paraphernalia in the front part of a vehicle with two occupants.  If there’s only one marijuana pipe but both individuals admit to using it, both can be charged with possession.  The same is true if both individuals deny possession: both are still likely to be charged because the pipe was in an area over which both individuals could exercise control.

What do I do if I’m facing a possession crime?

First, remember your rights when you are stopped by police.  You do not have to say anything, and it is often in your best interest to remain silent.  There are numerous ways to fight possession charges, both through pretrial motions and at a trial.  As stated above, we can show the jury that you did not know the item was in your area or that you did not intend to exercise physical control of the item.  The attorneys at Meyer Van Severen, S.C. will pursue every possible defense and will leave no stone uncovered.  If you or someone you know is facing a possession charge, contact us immediately!