There are certain things the government will not allow you to possess, such as illegal drugs or a gun if you are a convicted felon. There are also things that although legal, you may not want people to know you possess, like a Georgia Bulldog football poster or an “I love Bill Cosby” button. But just because the item in question is not in your pocket or hand, does not mean you do not possess it. I am not sure where the expression “Possession is nine-tenths of the law”, but not only does it not make sense, it is not true. And if you are arrested for possessing something you should not have been possessing, please do not come into my office and offer the nine-tenths defense as something that is viable in court. Also please remember that just because you don’t own the item, doesn’t mean you can’t possess it.
Generally, there are two ways the government can attempt to prove someone possessed an item. The first is “actual possession” and is what we normally think of when we say someone possessed something- it’s on your person, in your pocket, you are carrying it, etc. There is rarely any dispute in these types of cases, although I have had more than one client claim they did not know what was in the pocket of the pants they were wearing. However, most disputes arise when the government attempts to prove somebody is in “constructive possession” of the item.
In order to prove that you constructively possess an item, the government has to show that you know about the item and that you have the ability to control it. Once we get into this type of possession, there are an indefinite amount of scenarios on the proof continuum, and there many scenarios that have no cut and dry answer. On one end of the continuum, you have the gentleman who is caught alone in a car he owns with his Bulldog poster in the passenger seat and confederate flag hat on his head. When asked if the poster is his, he says, “Nah” and wants to argue that because he wasn’t holding the poster, no one can prove he possessed it. That’s as unlikely to fly as it that he has an advanced degree in physics. On the opposite end of the continuum, the poster is in the trunk of a car and there are five guys in the car, none of whom claim ownership of the poster and the cops can’t find any DNA or fingerprints on the poster. It could belong to any one of the five and in that situation, the courts will hold that the government cannot prove that anyone in the car knew about the poster or had the ability to control it. Most constructive possession cases, however, are somewhere up the middle. And that is what makes it interesting. So, the lesson is, if you don’t want anyone knowing you are a Cosby fan, don’t buy the pin to begin with, and they you won’t have to worry about whether people find out that you possess it.
By Eric H. Barker
Eric Barker, aka the Law Buffalo, has been practicing law in Central Florida for 25 years. His meteoric rise within NeJame law culminated with him being promoted to partner after only 1 year. As partner in the criminal division for the past 18 years, he has handled several high profile cases for the firm, litigates in both state and federal court, and is rated as a preeminent lawyer by Martindale-Hubbell. Mr. Barker can be reached at 407-500-0000 or firstname.lastname@example.org