March 2010 Archives

Possession of Drugs, Guns, Stolen Property & Child Porn; Michigan and Federal Laws Do Not Require Actual Possession

March 25, 2010,


When a client is charged with a crime which involves "possession", our Macomb County criminal defense attorneys delve into the facts and details of the case, along with the applicable Michigan laws, which pertains to the issue of possession. For example, all drug crimes require the element of possession. This blog is about the applicable Michigan laws which are applied or argued when the issue of "possession" is an element in a criminal case.

Many Michigan criminal laws, especially drug crimes and stolen property laws, contain an element or requirement of "possession". Possession of child pornography cases invariably involves legal arguments by criminal defense lawyers and prosecutors regarding the issue of possession. In this regard, specialized computer forensics or other technical evidence is used by law enforcement to establish the element of "possession" and by criminal defense attorneys to contest the issue. Michigan laws which make possession in and of itself the crime allows for arrests and convictions without proving the use or sale of a prohibited item.

There are several terms which are used to describe different types of possession. For example, possession may be constructive, illegal, joint, legal, physical, or sole. Historically, actual possession was required for a criminal possession conviction. In other words, a person could not be charged with a crime unless he was "caught red handed" with the illegal property. In the 1920s, courts expanded criminal possession to include "constructive possession". In an early Michigan criminal case 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 [1920]). Later cases, especially narcotics cases, have continued to expand the law of criminal possession.

Possession versus Ownership: Possession is not the same as ownership. The phrase "possession is nine-tenths of the law," is often used to suggest that someone who possesses property can face legal consequences. The owner of an object may not always possess it.

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. 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. Constructive possession is frequently used in cases involving drugs, guns and stolen property in Michigan criminal cases. Constructive possession, also sometimes called "possession in law," exists where a person has the ability to control the object even if the person has no physical contact with it. 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. For legal purposes, they are considered to have constructive possession of the contents of the safety deposit box.

Link to Blog: Proving Possession In Drug Crimes

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