Although it is passive rather than active, possession is still considered a criminal act. The most common objects that are criminal to possess are illegal contraband, drugs, and weapons. There are two types of possession: actual possession andconstructive possession. Actual possession indicates that the defendant has the item on or very near his or her person. Constructive possession indicates that the item is not on the defendant’s person, but is within the defendant’s area of control, such as inside a house or automobile with the defendant. 1 More than one defendant can be in possession of an object, although this would clearly be a constructive possession for at least one of them.
Because it is passive, possession should be knowing, meaning the defendant is aware that he or she possesses the item. 2 As the Model Penal Code states in § 2.01(4), “[p]ossession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” In the vast majority of states, a statute permitting a conviction for p ossession without this knowledge or awareness lacks the criminal intent element and would be unenforceable.
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