Possession – The Essential Element

When looking at possession of controlled substance, possession of a firearm or possession of a prohibited weapon, the key to these cases is the possession aspect of it. One element that the State has to prove is that the person who is charged knowingly possessed the item. In a drug charge, this would be drugs. Possession is legally defined as “actual care, custody, control, or management.” In some cases, the State has to prove that you knew the item was contraband. In others, they might have to prove the person was legally prohibited from possessing the item, such as a firearm.

One big misunderstanding that often happens is that people believe that they are not in possession if the drug or firearm in not physically on them. This is a big misconception. As an attorney, sometimes that is the first thing my client tells me. “They didn’t find anything on me.” If only it were that simple. Determining whether someone possesses something requires looking at several factors. Remember, the State has to somehow prove that the person charged was in “care, custody, control, or management.” You will often hear this referred to as “affirmative links.”

We frequently tell people, even though you are away from your home, you are in possession of everything in the home. You may be at work, but you possess the television that is in your house. Remember, we don’t have to have the item on us. But, even while at work, I have care, custody, control or management of the items in my house. I have my items in a secured location that is managed by me. I have the authority to go to my house and care for these items. I also have the ability to move or have items moved with my authority. I have keys that control access to the items. The same thing may apply when determining possession of items in a car or locker.

Affirmative Links

1. Was the drug or weapon in a place owned or leased by the defendant?
2. Was the drug or weapon in plain view of the defendant?
3. Was the drug or weapon on the defendant’s person?
4. Was the drug or weapon in close proximity to the defendant?
5. Was the drug or weapon found in a vehicle driven by the defendant?
6. Were furtive gestures made at the time of the stop?
7. Did the drugs emit an odor that would have let anyone know that the drugs were present?
8. Did the defendant attempt to flee, when contacted by police?
9. Did the defendant make any incriminating statements when arrested?

In answering these questions of affirmative links, the State and Defense will look at the specific facts of each case. Detectives may collect mail, or an apartment lease, to link an individual to the residence. They may collect a defendant’s keys to show access and control of a property. They may look at who the car is registered to in order to prove control of the car. If contraband is found in a purse or bag, they may try to find a license or wallet in the bag that would link an individual to that bag where the contraband was found. I think you get the idea.

Hopefully, you don’t find yourself in this situation. But if you do, contact the attorneys at Harris and Harris Law Group, PLLC, to discuss your specific facts. These types of cases are extremely fact-specific and you want attorneys that will do a thorough job of looking and preparing for your specific situation.