Forms of Possession

Forms of Possession

Section 2.01(4) settles when possession counts as an act, but it does not describe what connection between a person and an item amounts to possession in the first place. Courts answer that question by sorting cases into forms, and the baseline form is actual possession, which means physical control of the item on one's person or in one's hands.¹ In United States v. Lopez, a twelfth-grade student arrived at a San Antonio high school carrying a concealed .38-caliber handgun and five bullets, and he admitted to school authorities that he was carrying it.² The holding concerned the reach of Congress's commerce power and not the meaning of possession, but the facts show the form at its plainest: the item is on the person, and the person knows it.³ Actual possession is the easy case for the act requirement because physical control usually traces to a deliberate acquisition, as when a buyer pays for a gun and slips it into a coat pocket.⁴ Easy does not mean automatic, however, because § 2.01(4) still applies, so a person who carries an item with no awareness of it has physical control but has not, under the Code, performed an act of possession.⁵

Actual possession alone would leave a wide gap, because contraband is often kept somewhere other than on the body and is often shared. A dealer who stores pills in a locked closet at home, or several people riding in a car with a gun in a bag, would escape a possession statute if the law demanded a hand on the item. The reason courts refuse that result is the incentive it would create: anyone could avoid liability by setting the item down a few feet away, and the statute would reach those who carried contraband while missing those who stored it. Courts therefore recognize two extensions of the baseline. Constructive possession reaches an item located elsewhere when the defendant has the power and intent to control it, and joint possession reaches an item that two or more people control at the same time. The first answers the problem of where the item is, the second the problem of how many people stand in relation to it, and a single case can raise both. A common exam error is to treat holding the item as the definition of possession, which leaves the stash house and the shared car unexplained.

County Court of Ulster County v. Allen shows both extensions at work in one set of facts. A car was halted for speeding with four occupants, and two loaded handguns were found in the handbag of one of them, a sixteen-year-old riding with three adult men.⁶ The trial judge told the jury that possession could be actual physical possession, such as holding the weapons, or constructive possession, which may exist without personal dominion over the weapons but only with the intent and ability to retain control or dominion over them.⁷ The jury was then directed to weigh all the circumstances in deciding whether all four occupants possessed the guns, so the case asked at once where the guns were and whose they were.⁸ The dissent's objection, that presence in a car does not by itself show dominion over everything in it, previews the limit taught later in this chapter under Mere Presence.⁹ Neither extension displaces § 2.01(4), because a constructive or joint possessor must still have knowingly procured or received the item, or been aware of control long enough to end it.¹⁰ The next subsection takes constructive possession first, since joint possession applies the same power-and-intent test to more than one person.

Constructive Possession

Constructive possession is the first extension of the actual-possession baseline, and it reaches an item the defendant is not holding. A person has constructive possession when the item lies within the person's dominion and control and the person has the power and the intent to control its disposition or use.¹² Courts use the term for control or dominion over property without actual possession or custody of it.¹³ In everyday terms, the defendant holds nothing in hand but has the right to hold the thing and the means to get it, as with the key to a storeroom or a safe deposit box.¹⁴ The doctrine therefore asks about the defendant's relationship to the item, and where the defendant happens to stand matters only as evidence of that relationship.

The test has two halves, and each half exists for a different reason. Power asks whether the defendant can in fact reach and direct the item, for example because the defendant holds the key to the place where it sits or controls the area where it is kept. That half carries the functional logic of the doctrine, since a possession offense punishes whoever holds the means to decide what happens to the item, and a person with no way to use, move, or destroy it holds no such means. Intent does subtler work. Many people have access to places that contain things they never chose to keep, such as a roommate, a landlord, or a passenger in a borrowed car, and a rule that looked only to power would make each of them answer for what someone else left there. Requiring intent ties liability to the defendant's own choice to keep the item within reach, which is the same choice that justified treating possession as an act under § 2.01(4).¹⁵

Courts phrase the two halves in slightly different words, so "power" and "ability" should be read as the same idea. In County Court of Ulster County v. Allen the trial judge told the jury that possession could be actual, such as having the weapons in one's hand, or constructive, which "may exist without personal dominion over the drugs or weapons but with the intent and ability to retain such control or dominion."¹⁶ The Supreme Court relied on that instruction in concluding that the jury had been directed to weigh all the circumstances and decide for itself whether the four occupants of the car possessed the two loaded handguns.¹⁷ Leaving the question to the jury as an inference from the whole record fits the doctrine, because the intent half is a state of mind and is almost never proved directly.

That difficulty of proof is why knowledge matters so much. In a prosecution for trafficking in cocaine, the court in Kimbrell's case stated that an accused has possession of contraband when he has both the power and intent to control its disposition or use, and then reasoned that actual knowledge of the presence of the drug is strong evidence of intent to control, so that knowledge may be equated with or substituted for the intent element.¹⁸ The State had evidence that Kimbrell actually knew the cocaine was there, and the court concluded that the jury could infer both power and intent to control it during the time Gene and an undercover agent were outside the mobile home, because possession may be inferred from circumstances.¹⁹ The logic follows from what knowledge means for a person in control of a place: someone who knows an item sits within reach and leaves it there is, in the ordinary case, choosing to keep it available. Knowledge substitutes only for the intent half, because awareness of an item does not create the ability to reach it. The conviction was nonetheless reversed, because the trial judge had refused a requested charge that mere presence where drugs are present is not enough, a limit this chapter takes up under Mere Presence.²⁰

Power can also come from an arrangement among people, and a drug case shows it arising when the defendant had moved farther from the drugs. Zavala and a co-participant, Santos, were together in a hotel room with a bag of cocaine, and the reviewing court thought it at least arguable that Zavala did not possess the drugs while the two men were in the room together, because Santos apparently had exclusive control of the bag and had refused Zavala's suggestion that it be entrusted to Zavala's friends in another room.²¹ Once both men left with the bag in a closet or dressing room, however, the court held that a jury could find constructive possession: Santos had surrendered his actual possession, and with both parties' acquiescence the drugs were secured in Zavala's room, so Zavala had sufficient power to control them and an intention to exercise that power.²² Proximity did not drive that result, since Zavala had moved away from the drugs. What changed was who controlled the bag and where it sat. Set beside Kimbrell, the case shows the two halves at work separately: in Kimbrell knowledge supplied the intent half for a person positioned to control the item, while in the hotel case control of the place supplied the power half once another person gave up actual possession. The court itself observed that the idea is sound and that the difficulty lies in deciding how far to carry it.²³

Courts often rest a constructive-possession finding on how close the person was to the items or how easily the person could bring them under control.²⁴ Those facts are circumstantial evidence of power and intent, and the inference they support has limits that come later in this chapter. The doctrine also has a different meaning in property law, where courts often hold that a landowner constructively possesses whatever lies on the land even if the owner does not know it is there.²⁵ That rule helps settle which claimant has the better right to a found object, and an unknowing owner can still win that contest. A possession offense assigns punishment and asks for power and intent to control, with knowledge standing in for intent.²⁶ The same landowner may therefore count as the constructive possessor in a property dispute and still lack the intent a criminal statute requires, a distinction developed further under Other Meanings of Possession below.

Students lose this issue when they treat access to the place where an item sits as control of the item, because the test asks about the defendant's own power and intent and not about who else could reach the spot.²⁷ Constructive possession also remains subject to the act requirement: a person who never knowingly procured or received the item, and was never aware of the control long enough to end it, has not performed an act of possession, whatever the person's physical relationship to the area.²⁸ The next subsection turns to the second extension, which applies the same power-and-intent test when more than one person stands in that relationship to the item.

Joint Possession

Joint possession applies the power-and-intent test to more than one person at the same time. Possession is joint when two or more people each possess the same item at once, and the case law treats the arrangement as routine. The settled meaning of possession in drug statutes covers joint as well as exclusive possession, and the forms combine, so that joint constructive possession is as serious as keeping the drugs in one's own pocket.³⁰ The reason follows from what an exclusivity requirement would do. If a possession statute reached only the single holder of an item, every member of a group that kept a stash together could point to the others, and no one would possess anything. The offense would then miss its most organized form, which is shared storage among several people. The rule closes that gap by judging each person separately and by treating each possessor as possessing the whole item rather than a fraction of it. Property law offers a loose parallel in the co-tenancy, where each co-tenant has a possessory right to the whole property.³¹ The parallel ends at the shared-whole idea, because a joint criminal possessor's reach over the item comes from that person's own knowledge and control and not from title.

The test for each joint possessor is the one already taught for constructive possession, run once for each defendant. An accused person possesses contraband when he has both the power and the intent to control its disposition or use, and knowledge of the item's presence may be substituted for the intent element.³² The question is therefore put to each defendant in turn: did this person know the item was there, and could this person in fact reach and direct it? Two people who both answer yes share possession, while a person who answers no to either is outside the group, however close to the others. A possession offense punishes a person's own relationship to the item, so the answer cannot be borrowed from a companion. If shared location counted, liability would pass from the person who controls the item to everyone nearby, and the prosecution would never have to prove what any one of them knew. Each joint possessor must also satisfy the act requirement personally, because § 2.01(4) asks whether that possessor knowingly procured or received the item or was aware of control for long enough to end it.³³

County Court of Ulster County v. Allen supplies the multiple-person example. Two loaded handguns sat in the handbag of a sixteen-year-old riding with three adult men, but the guns were too large to be hidden in the bag, which was left open with part of one gun in plain view, within easy reach of the driver and perhaps of the two men in the back seat.³⁴ Those facts allowed the inference that each occupant was aware of the guns and had both the ability and the intent to exercise dominion over them, much as if the guns had been lying on the seat in front of everyone.³⁵ The inference worked because each fact bore on a particular person's awareness and reach, and not only on the fact that all four were in one car. The jury was also entitled to reject the theory that the handbag's owner was the sole custodian, since it was highly improbable that the youngest passenger alone was responsible for two heavy guns in that bag.³⁶ Two features of the case keep it from proving too much. The statutory inference of possession was only permissive, and the judge told the jury that constructive possession could not exist without the intent and ability to exercise control or dominion, so the jury had to weigh all the circumstances for itself.³⁷ The jury also did not treat location as irrelevant, because it acquitted on the charge covering the machine gun and heroin in the trunk, which shows it attached significance to where each item was found rather than treating every occupant as the possessor of everything in the car.³⁸

The contrasting pole is the sole custodian. In the hotel-room facts taught earlier, Santos apparently had exclusive control of the bag of cocaine while the two men were together, so it was at least arguable that Zavala did not possess it then, despite standing in the same room.³⁹ Sharing a room did not make Zavala a possessor, and Santos's exclusive control cut the other way until the facts about control changed. The dissent in Allen names the danger that the per-person requirement guards against: treating presence in a car as enough would allow conviction by association with others who may possess the weapon.⁴⁰ Kimbrell's case turns that concern into a practical rule, because the court reversed her conviction when the trial judge refused to tell the jury that mere presence where drugs are present is not sufficient.⁴¹ That limit receives its own treatment under Mere Presence below.

The second box changes if the second roommate later discovers the pills and leaves them in place with time to dispose of them. Awareness of control for a period long enough to end it is the second route by which possession becomes an act, so the analysis then reaches that roommate as well.⁴² Students lose this issue when they treat shared location as shared possession, because liability rests on each defendant's own knowledge and control, and two people in the same car, room, or home may stand in very different relationships to what is inside.⁴³