Other crimes - Possession offenses

Learning Outcomes

This article explains possession offenses, including:

• Understanding how possession functions as the actus reus of “other crimes” and how it differs from mere status or proximity.
• Identifying and articulating the required mens rea, with emphasis on “knowingly” and awareness of the item’s contraband character.
• Distinguishing precisely between actual possession and constructive possession, and using facts about access, location, and control to classify each.
• Analyzing joint and shared possession in vehicles, apartments, and other common spaces, and determining when multiple defendants can be convicted.
• Evaluating whether the prosecution has proven dominion and control, including when keys, admissions, or exclusive use support an inference of control.
• Applying and critiquing common defenses—lack of knowledge, lack of control, mistake of fact, momentary or innocent possession, duress, and entrapment—on bar-style fact patterns.
• Using willful blindness and circumstantial evidence to assess whether a defendant “knew” of the item’s presence or character.
• Spotting recurring MBE traps, such as liability based solely on ownership of premises, presence near contraband, or possession without proof of awareness.
• Reading statutory language carefully to determine whether strict liability is possible or a culpable mental state must be implied.
• Organizing exam answers that clearly separate actus reus, mens rea, and defenses, and that explain why close cases should come out for or against liability.

MBE Syllabus

For the MBE, you are required to understand possession offenses as a type of “other crime,” with a focus on the following syllabus points:

• Definition of possession and the difference between actual and constructive possession.
• The required mental state for possession offenses, including “knowingly” and awareness of possession.
• The relationship between knowledge, dominion and control, and criminal liability.
• Joint and shared possession, particularly in vehicles and shared premises.
• Defenses and excuses (e.g., lack of knowledge, innocent or momentary possession, duress).
• Application of these rules to fact patterns involving drugs, weapons, and stolen property.

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.

1. Which of the following best describes "constructive possession" in a criminal law context?
   1. Physical holding of an item.
   2. Ownership of an item.
   3. The ability and intent to control an item, even if not physically holding it.
   4. Mere proximity to an item.
2. To be convicted of a possession offense, the prosecution must generally prove that the defendant:
   1. Was aware of the item's presence and had the ability to control it.
   2. Touched the item at least once.
   3. Owned the premises where the item was found.
   4. Had a motive to use the item.
3. Which of the following is generally NOT a valid defense to a possession offense?
   1. Lack of knowledge of the item's presence.
   2. Momentary possession solely to dispose of the item.
   3. The item belonged to a friend.
   4. The defendant was under duress.
4. A statute makes it a crime to “knowingly possess a controlled substance.” Under this statute, the prosecution must prove that the defendant:
   1. Knew she possessed something, but not that it was a drug.
   2. Knew she possessed the substance and that it was a controlled drug.
   3. Knew that possessing the drug was illegal.
   4. Intended to use or sell the drug.

Introduction

Possession offenses are common on the MBE and include crimes such as possession of drugs, weapons, or stolen property. These offenses usually do not require proof that the defendant used or intended to use the item; liability generally turns on whether the defendant knowingly possessed the contraband with sufficient control over it.

Possession offenses test two core criminal law ideas:

• When a “state of affairs” (having something) counts as a voluntary act (actus reus).
• What level of awareness (mens rea) about the item and its character is required.

Key Term: Possession
Possession means having actual physical control over an item or having the power 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 (e.g., in a hand, pocket, or backpack being worn).

Key Term: Constructive Possession
Constructive possession exists when the defendant does not have the item on their person but has dominion and control over the place where it is located, together with the intent and ability to exercise control over the item.

Key Term: Dominion and Control
Dominion and control refers to the practical power to access, move, or exclude others from an item or the place where it is located.

Key Term: Knowledge
Knowledge, in the context of possession offenses, ordinarily means awareness that the item is present and, under many statutes, awareness of the item’s nature as contraband or a particular prohibited object.

Key Term: Joint Possession
Joint possession occurs when more than one person has the power and intent to control the same item at the same time.

Key Term: Momentary Possession
Momentary possession describes brief, transitory control over an item, often for a limited purpose such as inspection, disposal, or turning it over to authorities.

Key Term: Willful Blindness
Willful blindness (conscious avoidance) occurs when a defendant strongly suspects the truth (e.g., that a package contains drugs) but deliberately avoids confirming that suspicion.

Elements of Possession Offenses

Most possession crimes require two main elements:

1. Actus reus – possession of the prohibited item.
2. Mens rea – knowledge of the item’s presence, and sometimes its contraband character.

Some regulatory or “public welfare” statutes may impose strict liability, but on the MBE, drug and weapon possession statutes usually include a “knowingly” requirement or are interpreted to require at least awareness of possession.

Actus Reus: Possession as an “Act”

Criminal law normally requires a voluntary act, not just a status. Possession counts as a sufficient “act” when:

• The defendant has control of the item (actual or constructive), and
• Maintains that control long enough to have a realistic opportunity to terminate the possession.

If defendant has an item in her bag for days, that is clearly enough. If an item is slipped into her pocket seconds before the police search her, and she never knew it was there, she lacked awareness and opportunity to end possession.

On the MBE, assume the actus reus requirement is met if:

• The defendant physically holds or carries the item, or
• The item is in a place under the defendant’s dominion and control (e.g., locked locker, personal bedroom, closed container).

Actual vs. Constructive Possession

• Actual possession: The item is on the defendant’s person (in a pocket, in a bag the defendant is carrying, in a shoe, in a waistband, in a hand).

• Constructive possession: The item is not physically on the defendant but is in a location the defendant controls, such as:

  • A car the defendant drives and controls.
  • A bedroom or locker to which only the defendant has the key.
  • A stash hidden in the defendant’s closet or desk drawer.

Constructive possession requires both:

• Power to control the item (dominion over the place/container), and
• Intent to exercise control over it (or at least acceptance of having it there).

Mere proximity is not enough. A passenger sitting near a bag of drugs does not automatically constructively possess them without some evidence of dominion and intent.

Knowledge and Control

To convict, the prosecution must ordinarily show:

• The defendant knew the item was present (awareness of possession).
• The defendant had dominion and control over it (actual or constructive).

Absent statutory language to the contrary:

• The defendant need not know possession is illegal.
• If the statute adds “knowingly,” many courts require the defendant to know the nature of what is possessed (e.g., that the white powder is a controlled drug, not flour).

Knowledge can be proven by circumstantial evidence. The prosecution may rely on:

• Admissions (“Those are my drugs.”).
• Exclusive control of the container or area (locked trunk with defendant’s key).
• Conduct suggesting ownership (attempts to hide, claims that others should not “touch my stuff”).

A defendant may not escape liability by deliberately avoiding the truth.

Exam Tip (Willful Blindness)
If facts show the defendant strongly suspected contraband (e.g., taking a sealed package for cash, told “don’t ask what’s inside”) but deliberately avoided checking, the MBE may treat this as knowledge under a willful blindness theory.

Joint Possession

More than one person can possess the same item at the same time if each has:

• Knowledge of the item’s presence, and
• The power and intent to exercise control over it.

This often arises when:

• Drugs are kept in a shared car or apartment.
• A group shares a stash used by all members.

Joint possession does not require proof of equal control or ownership—only that each defendant has enough control to exercise dominion over the item.

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 because both knew of the drugs and both could have exercised control over the bag.

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 and using the closet), the tenant may be found guilty. If the tenant genuinely lacked knowledge, there is no possession because awareness of the item’s presence is missing.

Worked Example 1.3

Police stop a car with three passengers. A bag of heroin is in the closed glove compartment. The driver has the only key, appears nervous, and admits he “borrowed the car to make a delivery.” The two passengers are strangers who accepted a ride ten minutes earlier. None of the passengers has keys or personal items in the glove compartment.

Answer:
The driver can be found in constructive possession: he controls the car and the locked glove compartment, shows consciousness of guilt, and likely knows about the drugs. The passengers are probably not guilty of possession. Mere presence in the car, without evidence of access to or control over the glove compartment, is insufficient to establish dominion and control.

Worked Example 1.4

A person picks up a jacket at a party, believing it is hers. While wearing it outside, police search her and find a bag of cocaine in the inside pocket. She had no idea the drugs were there, and there is no evidence she knew anyone at the party had drugs.

Answer:
She has actual physical possession of the jacket and the drugs, but if the applicable statute requires “knowing possession” of a controlled substance, she is not guilty unless the prosecution can prove she was aware of the presence of the drugs. Her honest mistake about the jacket’s ownership is irrelevant; the key is her lack of awareness of the cocaine in the pocket.

Duration and Continuing Possession

Possession is often treated as a continuing offense:

• Once a defendant knowingly acquires possession, the offense continues as long as he retains control.
• This affects issues like the statute of limitations and venue (beyond MBE scope), but conceptually it means each moment of continued control is part of the actus reus.

The law generally requires only that the defendant have the item long enough to discard, destroy, or surrender it if he wished. A defendant who continues to hold the item after learning what it is has satisfied the act requirement.

Defenses to Possession Offenses

Common defenses contest either the actus reus (no possession, no control) or the mens rea (no knowledge, no required state of mind).

1. Lack of Knowledge

A central defense is that the defendant did not know:

• The item was present at all (e.g., someone else slipped drugs into the bag), or
• The nature of the item, if the statute requires knowledge of its contraband character.

Examples:

• A friend hides a firearm in the defendant’s trunk without telling her.
• A defendant believes pills are aspirin but they are actually illegal narcotics, and the statute requires “knowing” possession of a controlled substance.

If knowledge is an element of the offense, a genuine lack of awareness negates mens rea.

2. Lack of Dominion and Control

Even with knowledge, the defendant may argue that he lacked the ability to control the item:

• A hotel guest knows drugs are in a safe controlled only by another guest with the sole key.
• A passenger knows there is a gun in the locked trunk but has no keys and no control over the car.

Without actual or constructive control, there is no possession.

3. Momentary or Innocent Possession

Some jurisdictions recognize a defense when possession is:

• Brief and transitory, and
• Solely for an innocent purpose, such as disposal, destruction, or immediate surrender to authorities.

Typical successful scenarios:

• Picking up a gun to unload it and make it safe before calling the police.
• Grabbing contraband only long enough to throw it away and remove danger.

Courts are less likely to accept the defense when:

• The defendant holds the item longer than necessary, or
• The purpose is to conceal it from police or to aid another in avoiding detection.

Exam Tip (Momentary Possession)
If the facts emphasize that the defendant picked up contraband only to remove it from children, to throw it away, or to hand it to police, consider momentary possession as a possible defense. If the defendant instead hides it, stuffs it in a couch, or transports it for someone, the defense is unlikely to succeed.

4. Duress

Duress is available for most possession offenses (though not as a defense to homicide):

• The defendant must show he possessed the contraband because of an imminent threat of serious bodily harm or death, with no reasonable escape.
• Example: A person is forced at gunpoint to carry a bag of drugs, under threat of immediate harm.

Duress excuses the criminal conduct even though the elements are technically met.

5. Mistake of Law and Mistake of Fact

• Mistake of law (not knowing possession is illegal) is generally not a defense. A defendant who consciously possesses cocaine is guilty even if he mistakenly believes the statute was repealed.
• Mistake of fact can be a defense if it negates knowledge:
  • Believing a firearm is a realistic toy when the statute requires knowing possession of a firearm.
  • Believing a plant is an ordinary houseplant rather than marijuana, when knowledge of the plant’s nature is required.

The critical question is whether the statute requires the defendant to know the identity or nature of the item, or only to know that they possess something.

6. Entrapment (Occasionally)

Entrapment rarely appears in pure possession questions but may arise when:

• Government agents supply contraband and induce the defendant to take possession.
• Under the prevailing federal rule, entrapment focuses on whether the defendant was predisposed to commit the crime; the mere fact that an agent provided the contraband does not, by itself, establish entrapment.

Focus on predisposition if the issue is flagged; otherwise, the main possession rules still apply.

Types of Statutes and Mens Rea

On the MBE, you must read statutory language carefully:

• “Knowingly possesses” usually requires:

  • Awareness of possession, and
  • Awareness of the nature of the object (e.g., that it is a drug, a firearm, or stolen property).

• Statute with no express mens rea:

  • Default rule: the defendant must at least be aware of possessing the item.
  • For serious offenses (long sentences), courts often infer a higher mens rea (such as knowledge of character), but for some regulatory/public‑welfare offenses (e.g., mislabeled goods) strict liability is possible.

• If the exam gives a statute penalizing possession with no mental state words at all, consider:

  • Is this a typical drug/weapon statute (likely requires knowledge)?
  • Or a low‑level regulatory offense where strict liability may apply?

Exam Tip (Reading the Statute)
Questions often include the statute’s wording. Look for “knowingly,” “willfully,” or “with intent to.” If there is no mens rea in a serious possession statute, argue that the prosecution must still prove awareness of possession; courts rarely impose felony liability for purely innocent possession.

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 or lacked dominion over the place where it was found. Shared spaces (cars, apartments, common areas) require additional evidence—keys, admissions, exclusive use, or actions indicating control.

Revision Tip

In any question involving multiple people and contraband in a shared space, always ask:

• Who knew the item was there?
• Who had the power to access, move, or exclude others from it?
• Did anyone handle it only briefly for an innocent purpose?

The answers to these questions usually determine who is in actual, constructive, or joint possession and who has a viable defense.

Key Point Checklist

This article has covered the following key knowledge points:

• Possession offenses require both an act (actual or constructive possession) and a culpable mental state, usually knowledge.
• Actual possession means direct physical control; constructive possession means dominion and control over the place or container plus intent to control the item.
• Knowledge of the item’s presence is essential; many statutes also require knowledge of the item’s nature as contraband.
• Possession must last long enough for the defendant to have a realistic opportunity to terminate it.
• Joint possession is possible when more than one person has knowledge and control; ownership of the item or premises is not required.
• Mere proximity to contraband, without evidence of dominion and control, is insufficient for conviction.
• Key defenses include lack of knowledge, lack of control, momentary innocent possession, and duress.
• Statutory language (“knowingly,” silence on mens rea) is critical—always read and apply the specific terms given in the question.

Key Terms and Concepts

• Possession
• Actual Possession
• Constructive Possession
• Dominion and Control
• Knowledge
• Joint Possession
• Momentary Possession
• Willful Blindness