Possession as an Act

Possession as an Act

The previous part ended with possession stranded between two categories: a person who sits still with an item performs no bodily movement for the voluntary-act rule to examine, and has no independent duty that an omission theory could enforce. Model Penal Code § 2.01(4) closes that gap with a single sentence: "Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession."¹ The opening words tie the sentence to the voluntary-act requirement of § 2.01(1), which makes it a deeming rule, meaning a rule that treats a condition as satisfying a requirement it might not literally satisfy. Here the condition is a continuing state of control that can involve no movement at all, and the requirement is a voluntary act. The rest of this part explains when the Code is willing to make that equation and why it limits the equation as it does.

A deeming rule is needed because possession is a continuing condition, and an act requirement built around events fits a condition poorly. When officers find a gun in a defendant's coat, the defendant is usually doing nothing relevant at that moment, perhaps walking, sitting, or asleep. If the act requirement demanded a bodily movement at the moment of discovery, no possession offense could ever be proved. If the law instead dropped the act requirement and punished the condition alone, it would convict people who never chose to have the item. The difficulty can be framed as a question whether possession is an act, an omission, or only an attendant circumstance, the fact that an object happens to be available to the actor.² That third description matters because the Code sorts the parts of an offense into conduct, results, and attendant circumstances, and the voluntary-act requirement attaches to conduct, meaning proscribed physical actions or omissions to perform a duty.³ An attendant circumstance is any other fact the prosecution must prove about the conduct, such as where or when it occurred. A possession offense that linked the defendant to the item only through proximity would therefore have no conduct element for § 2.01(1) to examine, and § 2.01(4) supplies one by treating possession as conduct whenever it traces back to a choice.⁴

Section 2.01(4) looks for that choice at one of two points in the history of the possession, and finding it at either point is enough. The first point is acquisition. A person who knowingly procured or received the thing, by buying it, accepting it, or taking it, has performed a voluntary act at the moment of acquiring, and that act carries forward through all the hours of holding the item afterward. A buyer who purchases a gun and slips it into a coat pocket illustrates the simplest case, because the purchase is an affirmative act and the possession that follows is its continuation.⁵ The second point is retention. A person who did not knowingly acquire the item can still be treated as having acted once he is aware of controlling it for long enough to have been able to end the possession, because continuing to hold what one knows one holds, and could discard, is itself a choice.⁶

Each route ties possession to a choice made at a different moment, and the Code's refusal to go beyond them explains its treatment of the person who never knew. A smuggler who secretly loads heroin into a traveler's baggage, intending to retrieve it later, has not made the traveler a possessor in the Code's sense: the traveler never knowingly received the drugs and was never aware of controlling them, so neither route applies and there is no act.⁷ Most courts reach the same result by reading possession offenses to require awareness of having the item even where the statute is silent.⁸ The functional reason is that punishment works by giving people a reason to choose differently, and a traveler unaware of the drugs has no decision to make, so a conviction could deter nothing the traveler might have done. The retention route exists because acquisition alone would acquit everyone who comes into control innocently and later learns of the item. Once that person knows and has time to dispose of it, continued holding becomes a choice. That is also why the Code requires a sufficient period: the law asks for a real opportunity to terminate possession, and someone who learns of the item moments before the police arrive has had none.

Section 2.01(4) answers only the question whether the possession counts as the offense's conduct. Students lose this issue when they search the facts for a movement at the moment of arrest, because the provision looks to the knowing acquisition or the knowing retention, and a defendant found sitting motionless can still have performed a voluntary act at either point.⁹ The provision also stops short of the offense's mental state. The knowledge language in § 2.01(4) describes how the possession arose or continued, while the mental state that a particular possession offense demands, including what the defendant must know about the item's presence and character, is set by the statute defining the crime and is taken up later in this chapter. The same fact, such as the defendant's having seen the item, will often serve as proof on both questions, so each element is analyzed on its own terms. The next two subsections take the routes in turn, beginning with knowing procurement or receipt.

Knowing Procurement or Receipt

The first route through Model Penal Code § 2.01(4) places the voluntary act at the moment the possessor gets the item. Possession counts as an act if the possessor "knowingly procured or received the thing possessed."¹¹ Procuring covers the acquirer who takes the initiative, as by buying the item or picking it up. Receiving covers the acquirer who is handed the item by someone else and accepts it. Either way, the conduct is an event with a beginning, so the voluntary-act requirement has something to examine, and the hours of holding that follow carry that initial choice forward.

The clause has two parts, and each does separate work. The act part (buying, accepting, or taking) supplies the conduct to which liability can attach. The knowledge part ties that conduct to the item itself. A person who moves, carries, or accepts something without awareness that it is the forbidden item has performed a bodily act, but not an act of obtaining that item. The Code insists on the tie because punishment works by giving people a reason to choose differently, and nobody can choose against obtaining something that nobody knows is being obtained. The deliberate acquirer could have declined. The unwitting one had no decision to make, so a conviction would punish accident or deception rather than conduct.

The contrast appears in a felon-in-possession prosecution in which a pizza deliverer, asked as a favor by a customer to drop a shoe-box-sized parcel at a gun shop, told the shop he was delivering the package for someone and left. He did not know the parcel held a gun. The appellate court found reversible instructional error in refusing the defense theory, reasoning that possession, whether actual or constructive, must be intentional, so a person who comes by a firearm through misfortune or accident, with no intent to exercise control, has not committed the prohibited act with the required wrongful intent.¹² The Code reaches the same place in different vocabulary. Courts speak of intent to possess, and the Code speaks of knowing receipt, but the deliverer knowingly received a parcel and did not knowingly receive a gun, so neither verb in the first route is satisfied.¹³

Two clarifications keep this route from being misread. The knowledge that matters is knowledge of obtaining the thing itself, and knowingly obtaining a container does not supply it for the contents. A loose parallel from property law makes the point: someone asked to hold another's purse, briefcase, or coat does not necessarily possess contents that the holder does not know about.¹⁴ Students lose this issue when they treat carrying a container as the same thing as receiving everything inside it. The second clarification concerns scope. Knowing that one is getting the item differs from knowing its legal character, such as that a powder is a controlled substance or that a weapon is unregistered. The first route asks only about the former, and whether the statute demands the latter is the mental-state question taken up later in this chapter.

Courts divide when the defendant had no awareness at all. Most courts read possession offenses to require awareness of having the item even where the statute is silent, a reading that matches the Code's insistence on knowing acquisition or awareness of control.¹⁵ In State v. Bradshaw, a commercial truck driver crossed into Washington pulling a semitrailer on which someone had hidden 77 pounds of marijuana between pallets of cargo. There was no evidence that he knew of the drugs, and the Washington Supreme Court upheld the possession conviction anyway, rejecting the argument that awareness of an item is inherent in possessing it.¹⁶ Driving the truck was a voluntary act, but it was not an act of procuring or receiving the marijuana, so under the Code's first route the conviction would lack its act.¹⁷

The act requirement survives even where students expect it to disappear. A person who mistakenly puts on someone else's jacket with a weapon in the pocket, and has no reason to know it is there, has in most states not performed a voluntary act of possession, even if the charged offense imposes strict liability.¹⁸ Strict liability removes a mental-state element and leaves the act element in place, so the missing knowledge defeats the act itself. Everything in this part concerns the moment of acquisition. If the jacket wearer later feels the weapon and keeps wearing the jacket, the question shifts from how possession began to what the possessor did after learning of it, which is the second route, taken up next.

Awareness and Time to Terminate

The second route through Model Penal Code § 2.01(4) takes over when the first one fails, that is, when the possessor never knowingly procured or received the item. The provision then treats possession as an act if the possessor "was aware of his control thereof for a sufficient period to have been able to terminate his possession."²⁰ Three requirements sit inside that clause. The possessor must be aware that the item itself is within his control, which echoes the first route's point that knowing about a container does not supply knowledge of its contents. The awareness must also last for a sufficient period, so a flash of recognition is not enough. And the period must have been long enough for the possessor to end the possession by discarding, surrendering, or reporting the item. Timing is what separates this route from the first. Knowing acquisition completes the act at the moment of getting the item, with no waiting period, while this route has the timing built in: until the period has run there is no act, and once it has run, continued holding counts as one.²¹

The reason the Code looks to this later moment follows from what the voluntary-act requirement is for. Punishment can fairly reach only conduct that traces back to a choice, because only a person who could have chosen otherwise has a reason to respond to the threat of a sanction. A person who comes into control of something innocently has made no choice about it, so the first route alone would leave that person outside the offense for as long as the item remained unknown. Once the person learns of the item, each further hour of holding it is a decision, because disposal is available and the person declines it. The sufficient-period language protects the other side of that line: liability falls on the possessor who knowingly keeps the item, and not on one who discovers it and has no realistic time to react. The practical result resembles a duty to terminate possession within a reasonable time after learning of it.²² The Code reaches that result by calling knowing, continued possession an act, which keeps the analysis inside § 2.01(1) without requiring a separate source of legal duty.

The felon in possession of a firearm is the standard setting for the clause. In a California prosecution under that state's felon-in-possession statute, the defense asked for an instruction that an ex-felon who comes into possession of a firearm without knowing it, and later learns of it, does not violate the statute upon acquiring knowledge, and violates it only by continuing to possess the firearm for an unreasonable time without taking steps to rid himself of it.²³ The defendant was the pizza deliverer who carried a parcel to a gun shop, and he had told a detective that he did not know what was in the bag until he arrived at the shop. The appellate court held that the refusal of the instruction was reversible error, because a jury could find that he learned of the gun only at the counter and left it there at once, which is the opposite of keeping it for an unreasonable time.²⁴ The instruction restates the second clause of § 2.01(4) in the vocabulary of a firearms statute: learning of the item starts the clock, and possession becomes the offense's conduct only if the clock runs without the possessor acting.

The clause sets no fixed number of minutes or days, so the length of a sufficient period depends on the facts. What the clause measures is opportunity: how long it would take someone in this possessor's position to end the possession, given what the item is and where the possessor is when he learns of it. A small item in a pocket can be surrendered to police quickly, while an item discovered far from anyone to whom it can safely be handed over may take longer to dispose of. Conduct after discovery bears on the same question, because a possessor who promptly takes steps to get rid of the item is using the period to terminate, and the instruction in the felon case ties guilt to continued possession for an unreasonable time without such steps.²⁵

The standard illustration of Patricia shows how the question is argued. Patricia mistakenly puts on another person's jacket, and the first route fails because she did not knowingly receive a weapon. If she soon realizes that a weapon is in the pocket, she is under a duty to terminate her possession within a reasonable time, and failing to do so can support a possession charge. She would argue that she was trying to locate the original owner, while the prosecution would answer that she should have taken the jacket off at once or turned the weapon in to school authorities, and a conviction on those facts is possible.²⁶ The dispute therefore does not concern whether Patricia knew, since she did. It concerns whether her conduct after learning amounted to terminating the possession or to choosing to keep it.

Two decisions from other areas show why the clause is built this way. Rosemond v. United States is an analogy only, since it concerns accomplice liability for a gun offense and not possession. The Court held that an accomplice's knowledge that a confederate will carry a gun supports intent only if it is advance knowledge, meaning knowledge at a time when he can still act on it, most notably by walking away.²⁷ Knowledge that arrives too late to be used does not show a choice, which is the same idea that the sufficient-period language applies to possession. The opposite design appears in Justice Harlan's dissent in Mapp v. Ohio, which described Ohio's obscene-material statute, as construed by that state's supreme court, as punishing knowing possession or control irrespective of whether the accused had any reasonable opportunity to rid himself of the material after discovering that it was obscene.²⁸ A statute with that feature reaches the person who discovers the item moments before the police arrive, and that is the person the Code's clause excludes.

Students lose this issue when they treat the moment of discovery as the moment of guilt, because the clause runs from awareness through a sufficient period, and a possessor who uses that period to dispose of the item never satisfies it.²⁹ The clause also answers only the act question, so the mental state that the particular offense demands is analyzed separately. With both routes now in hand, the next part turns to the forms possession takes in practice.