All drug crimes require the element of possession. This publication will examine the applicable Michigan laws which pertain to the issue of “possession” as an element of a crime.
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 such as actual possession, constructive possession, joint possession, or sole possession. Historically, actual possession was required for a criminal possession conviction to stick. In other words, a person could not be charged with a crime unless he was “caught red handed” with the illegal property. In the 1920’s, courts expanded criminal possession to include “constructive 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, other than the lawful owner, can face legal consequences.
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 as a legal theory in the prosecution of crimes involving drugs, guns and stolen property. 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
When a client is charged with a drug crime, property crime, child pornography, or any misdemeanor or felony that involves the element of possession, it is our function to scrutinize the facts and apply the law which may weaken the case, promote a favorable plea bargain or lead to an outright dismissal.
We advise our clients to refrain from talking to the police. Law enforcement officers will use special interrogation tactics to gain confessions and admissions which can be used to establish the element of possession when the evidence is unsubstantial.
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