Learning Outcomes
After reading this article, you will be able to identify the elements of possession offenses, distinguish between actual and constructive possession, explain the required mental state, and apply common defenses. You will also be able to recognize typical exam pitfalls and answer MBE-style questions on this topic.
MBE Syllabus
For MBE, you are required to understand the legal rules and principles governing possession offenses. This includes the actus reus and mens rea, the difference between actual and constructive possession, and available defenses. You should be prepared to:
- Define possession and explain the difference between actual and constructive possession.
- Identify the required mental state for possession offenses.
- Recognize how knowledge and control relate to criminal liability.
- Apply defenses such as lack of knowledge or momentary possession.
- Analyze MBE-style questions involving drugs, weapons, or contraband.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
Which of the following best describes "constructive possession" in a criminal law context?
- Physical holding of an item.
- Ownership of an item.
- The ability and intent to control an item, even if not physically holding it.
- Mere proximity to an item.
-
To be convicted of a possession offense, the prosecution must generally prove that the defendant:
- Was aware of the item's presence and had the ability to control it.
- Touched the item at least once.
- Owned the premises where the item was found.
- Had a motive to use the item.
-
Which of the following is generally NOT a valid defense to a possession offense?
- Lack of knowledge of the item's presence.
- Momentary possession solely to dispose of the item.
- The item belonged to a friend.
- The defendant was under duress.
Introduction
Possession offenses are common on the MBE and include crimes such as possession of drugs, weapons, or stolen property. These offenses do not require proof that the defendant used or intended to use the item, only that they knowingly possessed it. Understanding the elements and common defenses is essential for MBE success.
Elements of Possession Offenses
Most possession crimes require two main elements: (1) possession of the prohibited item, and (2) knowledge of its presence and character.
Key Term: Possession Possession means having actual physical control over an item or the ability and intent to exercise control over it, even if not physically holding it.
Key Term: Actual Possession Actual possession occurs when the defendant has direct physical control over the item.
Key Term: Constructive Possession Constructive possession exists when the defendant has the power and intent to exercise control over the item, even if it is not in their immediate physical custody.
Key Term: Knowledge Knowledge means the defendant is aware of both the presence and the nature of the item as contraband or prohibited.
Actual vs. Constructive Possession
- Actual possession: The item is found on the defendant's person (e.g., in a pocket or hand).
- Constructive possession: The item is not on the person but is in a place the defendant controls (e.g., in a car or home), and the defendant has both the power and intent to control it.
Knowledge and Control
To convict, the prosecution must show the defendant knew the item was present and what it was. Mere proximity is not enough—there must be evidence of control or intent to control.
Joint Possession
More than one person can possess the same item if each has the power and intent to control it.
Worked Example 1.1
Police find a bag of illegal drugs under the passenger seat of a car. The driver owns the car, and the passenger admits to knowing about the drugs but claims they belong to the driver. Who can be convicted of possession?
Answer: Both the driver and the passenger may be convicted if each had knowledge of the drugs and the ability and intent to control them. Ownership is not required; joint constructive possession is sufficient.
Worked Example 1.2
A tenant rents a room in a house. Police find an illegal firearm in a locked closet in the common hallway. The key is found on the tenant. The tenant claims ignorance of the gun's presence. Is the tenant likely guilty of possession?
Answer: If the prosecution proves the tenant knew the gun was in the closet and had the ability and intent to control it (e.g., by having the key), the tenant may be found guilty. If the tenant genuinely lacked knowledge, there is no possession.
Defenses to Possession Offenses
Common defenses include:
- Lack of knowledge: The defendant did not know the item was present or did not know its illegal nature.
- Momentary possession: Brief possession solely to dispose of or destroy the item may be a defense in some jurisdictions.
- Duress: Possession under threat of immediate harm may excuse liability.
Exam Warning
On the MBE, mere proximity to contraband is not enough for conviction. The prosecution must show knowledge and control. Watch for facts suggesting the defendant was unaware of the item's presence.
Revision Tip
If a question involves multiple people and contraband in a shared space, always ask: Who had knowledge? Who had the ability and intent to control the item?
Key Point Checklist
This article has covered the following key knowledge points:
- Possession offenses require proof of possession and knowledge.
- Actual possession means direct physical control; constructive possession means power and intent to control.
- Knowledge of both presence and character of the item is essential.
- Joint possession is possible if more than one person has control and knowledge.
- Defenses include lack of knowledge, momentary possession, and duress.
- Mere proximity is not enough—look for evidence of control and intent.
Key Terms and Concepts
- Possession
- Actual Possession
- Constructive Possession
- Knowledge
