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The ownership, control, or occupancy of a thing, most frequently land or Personal Property, by a person.The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 ). Depending on how and when it is used, the term possession has a variety of possible meanings. As a result, possession, or lack of possession, is often the subject of controversy in civil cases involving real and personal property and criminal cases involving drugs and weapons—for example, whether a renter is entitled to possession of an apartment or whether a criminal suspect is in possession of stolen property.
The idea of possession is as old as the related concepts of private property and ownership. Our modern possession laws originated in the ancient Roman doctrines of possessio. English Natural Law inherited most of the Roman possession ideas, and later the British brought their law of possession to the American colonies. Following the War of Independence, state and federal courts continued to use and expand upon the historical notions of possession.
Possession versus Ownership
Although the two terms are often confused, possession is not the same as ownership. No legal rule states that "possession is nine-tenths of the law," but this phrase is often used to suggest that someone who possesses an object is most likely its owner. Likewise, people often speak of the things they own, such as clothes and dishes, as their possessions. However, the owner of an object may not always possess the object. For example, an owner of a car could lend it to someone else to drive. That driver would then possess the car. However, the owner does not give up ownership simply by lending the car to someone else.
The myriad distinctions between possession and ownership, and the many nuances of possession, are complicated even for attorneys and judges. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types. Many times these modifiers are combined, as in "joint constructive possession." All these different kinds of possession, however, originate from what the law calls "actual possession."
"Actual possession is what most of us think of as possession—that is, having physical custody or control of an object" (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y. 1988]). Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. For example, a person wearing a watch has actual possession of the watch. Likewise, if you have your wallet in your jacket pocket, you have actual possession of your wallet. This type of possession, however, is by necessity very limited. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it. To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.
Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it (United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]). For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. Constructive possession is frequently used in cases involving criminal possession.
Both federal and state statutes make possession of many dangerous or undesirable items criminal. For example, the federal statute 26 U.S.C.A. § 5861 (1996) prohibits possession of certain firearms and other weapons. Likewise, the possession of other items considered harmful to the public, such as narcotics, Burglary tools, and stolen property, is also made criminal under various laws. Criminal possession, especially of drugs, has been a major source of controversy. Making possession a crime allows for arrests and convictions without proving the use or sale of a prohibited item.
Historically, actual possession was required for a criminal possession conviction. Beginning in the 1920s, however, courts began expanding criminal possession to include constructive possession. The federal Prohibition of intoxicating liquors spawned several cases involving criminal possession. In one of the first criminal cases to use constructive possession, the court found a defendant guilty of possessing illegal liquor in trunks in the actual possession of another person (People v. Vander Heide, 211 Mich. 1, 178 N.W. 78 ). Subsequent cases, especially narcotics cases, have continued to expand the law of criminal possession.
Possession and Intent
In civil cases intent is rarely a part of possession. However, in criminal cases possession usually requires conscious possession. In other words, the person must be conscious of the fact that the item is illegal and that he or she possesses it. A person with possession of illegal drugs may avoid conviction if he or she believed the drugs were legal. Generally, to be guilty of criminal possession, a person must either know the item is illegal when it is received or must keep possession of the object after learning it is illegal.
Lafave, Wayne R., and Austin W. Scott, Jr. 1995. Substantive Criminal Law. St. Paul, Minn.: West.
Singer, George H. 1992. "Constructive Possession of Controlled Substances: A North Dakota Look at a Nationwide Problem." North Dakota Law Review 68.
Snyder, David V. 1992. "Symposium: Relationships Among Roman Law, Common Law, and Modern Civil Law." Tulane Law Review 66.