Other Meanings of Possession

Other Meanings of Possession

Model Penal Code § 2.01(4) supplies the criminal law's test for when possession counts as an act: the possessor must have knowingly procured or received the thing, or must have been aware of controlling it for long enough to have been able to terminate the possession.¹ The offense then layers its own mental state on top of that act, usually knowledge that the item is present and, where the statute demands it, knowledge of what the item is. Both layers ask what this defendant knew and could do about this item, so title, rank, and entitlement play no part in them. The same word appears in several other fields of law, and each field defined it to serve a different purpose, which is why a possession problem can tempt a reader to borrow a rule from the wrong place.

One outside limit has nothing to do with vocabulary: the Constitution restricts what a legislature may make a crime of holding. In Stanley v. Georgia the Court held that the First Amendment, applied to the states through the Fourteenth, bars making mere private possession of obscene matter a crime.² The Court added that this holding leaves states free to criminalize possession of other items such as narcotics, firearms, or stolen goods, because no First Amendment rights are involved in most possession statutes.³ Osborne v. Ohio later declined to extend Stanley to a statute against possessing or viewing child pornography, reasoning that the interests behind that prohibition far exceed those behind the Georgia law.⁴ A federal possession statute faces a structural limit as well: in United States v. Lopez the Court held that Congress exceeded its Commerce Clause power by making it a federal offense knowingly to possess a firearm in a school zone, because the Act neither regulated a commercial activity nor required any connection to interstate commerce.⁵ These cases decide whether a possession statute is valid. They take the meaning of possession as given and do not supply it.

The vocabulary problem is separate, and it arises because each field that uses the word built its definition to answer its own question. In civil discovery, courts define a party's control over documents as actual possession or the legal right to obtain them on demand, which decides who can be ordered to produce them.⁶ Under that test, access alone does not amount to possession, and ownership is not required.⁷ In contract law, a person who receives goods knowing they are offered for a price is bound at common law by the terms of the offer if the recipient exercises dominion and control over them, because acting like an owner is treated as acceptance, although many states now protect recipients of unsolicited merchandise by statute.⁸ Neither test tells a court whether a defendant is criminally in possession of contraband. Three other meanings come closer to the criminal problem, because students meet them alongside it: property-law possession, the vocabulary of adverse possession, and possession as an element of theft offenses. The first of these is property law.

Property-Law Possession

In property law, possession ordinarily combines actual control over a thing with an intent to possess it and to exclude others from it. The definition takes that shape because property law uses possession to allocate rights among competing claimants, such as a finder and someone who later asserts a claim to the same object, and the law must choose the claimant whose relationship to the object is strongest against everyone else. A test built to choose among rivals naturally asks whether the claimant held the object as against the world, which is the work the intent to exclude does.

Criminal possession involves no rival claimants. The prosecution must show a voluntary act of possession under § 2.01(4), meaning that the defendant knowingly procured or received the item or was aware of controlling it for long enough to terminate that control.⁹ That language says nothing about title, a right to keep the item, or an intent to exclude anyone, and the silence matters. Possession offenses have to reach people who hold contraband they do not own and often share, and a rule requiring exclusivity would let each member of a group guarding a stash escape by pointing at the others. Joint possession, discussed earlier in this chapter, rests on that same point, since two or more people can possess one item at the same moment.

What decides each outcome is the person's own knowing receipt or awareness of control. Students lose this issue when they reason from title or the right to exclude, because the test in § 2.01(4) mentions neither.¹⁰

Adverse Possession Vocabulary

Adverse possession is the doctrine under which someone who occupies another's land openly and without permission for the full statutory period can acquire title to it. Its cases use the labels actual possession and constructive possession, and that overlap with criminal vocabulary is the source of the confusion. In adverse possession, actual possession means physically occupying or using the land, while constructive possession is a legal fiction available to a claimant who holds a defective instrument, such as a deed, that purports to convey a larger tract. The instrument supplies what the doctrine calls color of title, and in many jurisdictions occupation of part of the described tract is then treated as possession of all of it. The fiction exists to fix the boundary of the claim: a claimant who enters under paper title cannot be expected to occupy every acre, so the doctrine needs a rule that measures how much land the occupation ripens into.

Constructive possession in criminal law answers a question about a particular item: whether a person who is not holding contraband nonetheless knew of it and had the power and intent to control it, as the earlier discussion of constructive possession explained. No instrument, boundary, hostility, or statutory period is involved. The only time element in the criminal test is a period long enough for the possessor to have been able to terminate the possession.¹² The shared adjective therefore carries two unrelated functions, since one fixes how much land a title claim covers and the other proves a defendant's connection to an object.

Both scenes involve a large area and a person who occupies only part of it, and the difference lies in what the law does with the area. Adverse possession lets an instrument stretch occupation across the described tract, while the criminal test does not stretch ownership of an area into knowledge of what lies inside it. Students lose this issue when they carry the fiction over and treat owning the surrounding area as constructive possession of its contents, because the act requirement in § 2.01(4) looks to the possessor's own knowing receipt or awareness of control.¹³

Possession in Theft Crimes

Possession plays a third role in property crimes, where holding something is usually one ingredient in a longer chain of conduct. The possession offenses taught in this chapter make the holding itself the crime: the statute punishes the person who has the narcotics, the firearm, or the stolen goods, and the prosecution proves no further wrongful act beyond the holding and the mental state the statute requires. Theft offenses use the word differently. In embezzlement, the defendant lawfully takes over possession and control of another's property, as when an employee or agent is entrusted with it, and the crime consists of fraudulently converting that property afterward. Possession is the condition that exists before the wrong, and the wrong is the later conversion.

The label shifts because theft law separates offenses by how the defendant came to hold the property. In larceny the wrongdoer takes possession out of someone else's hands by a trespassory taking, whereas in embezzlement the owner has already handed possession over, so the wrong has to lie in what the defendant later does with the property. Guilt for embezzlement is therefore built on a change of purpose after a lawful receipt. Guilt for a possession offense is built on the knowing holding itself, and no later misuse is needed.

The receipt looks identical in the two scenes, and the legal character of the receipt is what differs. In the first it is innocent and the offense is completed later, and in the second it is the offense. A reader who sees possession mentioned in a theft problem should ask whether the prosecution must prove a conversion after a lawful taking, or only a knowing hold on a forbidden item.

Property-Law Possession

In property law, a person has possession of a thing when two ingredients come together: a measure of actual control over it and an intent to possess it and to exclude others.¹⁶ Both ingredients must be present, so a claimant who holds an object with no intent to keep it, or who intends to keep it without any control, falls short.¹⁷ Pierson v. Post shows the two ingredients at work. A hunter who was merely chasing a fox had no possession against a rival who intervened and took the animal, because pursuit alone is not possession, although a mortal wound that shows a manifest intention to seize the animal can amount to constructive possession.¹⁸

The test takes this shape because property law uses possession to answer a question about rivals. Ownership of personal property rarely rests on a writing, so the law gives great weight to the observable fact of holding a thing and then ranks the people who claim it by the strength of their connection to it.¹⁹ A possessor prevails against everyone except those with a better right, such as the true owner.²⁰ The intent to exclude belongs in the definition because a ranking among rivals has to ask who held the object against the world, and control without that intent leaves the question unanswered. The test also bends to context. The court in Popov v. Hayashi treated possession as shaped by the nature of the property and the customs of the people who deal in it, so a fan in a stadium must achieve full control of a ball, while hunters and salvors can establish possession through significant efforts short of full control.²¹ In Willcox v. Stroup, the court used possession as the basis of a rebuttable presumption of ownership, which resolves a dispute when neither side can trace title through the records.²²

Because the property question is who holds the thing against rivals, property reasoning can attribute possession to someone who knows nothing about the item. Paul stands on a $100 bill without realizing it, and when Sue asks him to lift his foot and pockets the money, the property question is whether Paul held the bill before she did. His unawareness cuts against any intent to possess, yet his undisputed physical control supports the conclusion that he possessed the money, albeit unconsciously.²³ Courts likewise often hold that a landowner has constructive possession of whatever lies on the land, even when the landowner does not know it is there, and that holding makes the landowner the prior possessor as against a finder.²⁴ Property law also separates possession from title, since a person can own a thing without holding it and can hold it without owning it.²⁵

Criminal law has no rival claimants to rank. It asks whether this defendant is answerable for holding the item. Model Penal Code § 2.01(4) therefore treats possession as an act only when the possessor knowingly procured or received the thing, or was aware of controlling it for a period long enough to terminate the possession.²⁶ The first route ties liability to a choice to acquire the item, and the second ties it to a chance to let go that the possessor failed to take. Both routes serve the voluntary-act requirement taught earlier in this chapter: liability attaches to conduct the defendant chose or could have ended, and § 2.01(4) is the Code's way of finding that choice when the defendant only holds something. Title, a right to exclude others, and bare physical contact play no part in either route.

The two scenes share the same bag and the same spot, and the fact that changes the answer is the traveler's awareness together with the time to terminate.²⁷ A property court asking who held the bag against the world would look at control and at whether the traveler meant to keep it, while the criminal court asks what the traveler knew and could have done about it. The trap is to carry the property test across unchanged, because control plus an intent to exclude others answers a different question than the Code's awareness-and-time test.²⁸

Adverse Possession Vocabulary

Adverse possession is the doctrine under which a person who occupies another's land without permission, openly and continuously for the full period set by statute, can acquire title to it.³¹ The doctrine does its work on land titles. Records are sometimes wrong or ambiguous, and an owner who ignores a visible occupier for the whole statutory period has had ample chance to object, so after enough time the law protects the settled expectations of the person living there and clears title that might otherwise stay cloudy.³² Because the claimant's goal is ownership of a defined area, the two possession labels this doctrine uses answer an area question: how much ground has the claimant occupied?

In that setting, actual possession means real occupation of the land, measured by what an ordinary owner would do with property of that kind.³³ In Howard v. Kunto the court held that occupying a beach property only during the summer months still amounted to uninterrupted possession for the statutory period, because the question is whether the claimant behaved as owners in general behave toward property of like nature and condition.³⁴ Constructive possession is the label for the extension. A claimant who holds a written instrument that purports to convey a tract, but is defective, has what the doctrine calls color of title, and actual possession of part of the described tract is treated as constructive possession of the whole.³⁵ In one published illustration, Judy took a deed from someone who did not own the 500-acre Blackacre, cleared five acres, lived there for the statutory period, and was held to have adversely possessed all 500 acres described in her deed.³⁶ The extension exists because a person who enters under paper title cannot be expected to occupy every acre, so the doctrine needs a rule for measuring how far the occupation ripens into title. Some usages tie the constructive label even more loosely, to a claim built on paying taxes under color of right rather than on any occupation of the land.³⁷

Criminal constructive possession answers a different question. It asks whether a person who is not holding contraband nonetheless stands in a relationship to it, built on knowledge and the power to control, that justifies treating the person as its possessor. The act requirement in Model Penal Code § 2.01(4) supplies the floor: possession counts as an act only if the possessor knowingly procured or received the thing, or was aware of controlling it for a period long enough to terminate the possession.³⁸ Nothing in that test mentions a written instrument, a described tract, or the amount of land occupied. The reason lies in what possession offenses are for. They reach people who control forbidden items without holding them in their hands, and what makes that control blameworthy is what the person knew and could have done about it. A deed to the place where an item sits shows who owns the place and says nothing on either point.

The two settings differ in what a document is allowed to do. Adverse possession lets an instrument stretch a claimant's occupation across a described tract, while the criminal test lets no deed stretch a person's connection to whatever lies inside the property.³⁹ Students lose this issue when they see the word constructive in a drug or firearm problem and reach for color of title or the described boundaries, because the criminal question looks to the defendant's own knowing receipt or awareness of control. On an exam stem that mentions a deed, a lease, or a tract of land, the document answers who owns the place; the analysis still has to find what the defendant knew and could do about the item.

Possession in Theft Crimes

The word possession has one more job, and it appears in property crimes rather than in possession offenses. Property law uses it to rank rival claimants, and adverse possession uses it to measure how much land a claimant occupied. Theft law uses it to sort offenses by how the defendant came to hold someone else's property, and lawful possession at the outset is usually what separates larceny from embezzlement.⁴² Criminal courts take up the word when they decide whether a defendant has committed larceny.⁴³ A reader who meets possession in a theft problem must therefore ask first whether possession is itself the crime or only a step toward a different wrong, the appropriation of another's property.

Where possession is the crime, the prosecution proves a knowing hold on a forbidden item and nothing about what became of anyone's goods. In a trafficking prosecution against a defendant named Kimbrell, the court stated that a person knowingly in actual or constructive possession of ten or more grams of cocaine is guilty, that an accused possesses contraband when having both the power and the intent to control its disposition or use, and that actual knowledge of the drug's presence is strong evidence of that intent.⁴⁴ The act element comes from Model Penal Code § 2.01(4), under which possession counts as an act when the possessor knowingly procured or received the thing, or was aware of controlling it for a period long enough to terminate the possession.⁴⁵ No owner is wronged and no one's property is converted. The statute exists to keep a forbidden item out of circulation, so what makes the holder answerable is a knowing hold that the holder could have ended, and no intent to appropriate anything is asked.

Where possession appears inside a property crime, the inquiry turns to what the defendant did with someone else's goods. A delivery driver named Faulkner left his assigned route, went to a store, broke the seals on his truck, opened cartons of refrigerators, and moved the goods to show them to a prospective buyer. The court held that the statute's act, taking over possession and control with intent to convert the goods to the taker's use, had been proved, and that physical removal from the truck, a completed sale, and even an intent to return the property were beside the point.⁴⁶ The statute reaches this early because the wrong to the owner occurs when entrusted goods are put to the defendant's own purposes. If removal or a closed sale were required, a defendant caught after showing the goods to the buyer would escape, although the owner's control had already been usurped. The contrast with Kimbrell is the lesson: in both cases the defendant exercised control over an item, but in Kimbrell control plus knowledge completed the offense, while in Faulkner control completed the offense only because the intent to convert accompanied it.

Larceny uses possession in a third way, and here the vocabulary from earlier in this chapter becomes a trap. Larceny requires a trespassory taking from someone's possession, so a court must decide who held possession at the moment the defendant resolved to keep the goods. For an employee who handles the employer's cash, the law treats the employee as having mere custody while the employer keeps constructive possession, so an employee who walks off with the cash takes it from the employer's possession and commits larceny.⁴⁷ The line has a history: a bank teller who pocketed a £100 note handed to him by a customer for deposit was held not to have committed larceny, because the note was already in his legal possession, and the first embezzlement statute followed in 1799 to fill that gap.⁴⁸ The same label appears when fraud induces the transfer. In Hufstetler v. State, a driver had a station attendant fill the tank and then drove off without paying, and the court affirmed a larceny conviction on the reasoning that the trick vitiated the transaction and the owner was deemed to retain constructive possession, since the owner had no intention of parting with ownership of the gasoline until paid.⁴⁹ In a drug case, constructive possession attaches to the defendant and rests on what the defendant knew and could control. In larceny it attaches to the victim, as a device for finding that the defendant took the goods out of someone else's possession.

The most common error is demanding intent to convert in a possession offense, where the act rule and the statute's own mental state are all that the prosecution must prove. The opposite error treats a knowing hold on goods as enough for a theft offense, which still requires the intent that turns control into appropriation. Civil law reaches the same ground from the owner's side, since the tort of conversion is an intentional exercise of dominion or control over a chattel that so seriously interferes with the owner's right to control it that the actor may justly be required to pay its full value, and wrongfully acquiring possession is one way to commit it.⁵⁰