Possession as an Act

Fundamentals of Criminal Law by Adam J. McKee

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Most criminal codes make the conscious possession of certain things a criminal act even though we understand it to be a passive state in everyday language. Under Arkansas law, or example, this is part of the statutory definition of an Act (ACA § 5-2-201).

The law generally recognizes two types of possession: Actual possession and constructive possession.

      • Actual possession means that suspects have the prohibited items on them.
      • Constructive possession means that the suspects have control of the prohibited items, but they are not on them, such as when items are in a vehicle or home.

To prove constructive possession, the state must establish beyond a reasonable doubt that the defendant exercised care, control, and management over the contraband and that the defendant knew the matter possessed was contraband. The Arkansas courts, for example, have indicated that constructive possession can be implied when the contraband is in the joint control of the accused and another person. However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession. In Arkansas, for example, the government must prove some additional factor that demonstrates the suspect’s knowledge and control of the contraband, such as:

      • Whether the contraband was in plain view
      • Whether the contraband was found on the accused person or with his personal effects
      • Whether it was found on the same side of the car seat as the accused was sitting or in near proximity to it
      • Whether the accused is the owner of the vehicle or exercises dominion or control over it
      • Whether the accused acted suspiciously before or during the arrest (Porter v. State, Ark. App. LEXIS 320, 2003).

Arkansas statutory definitions take both ideas into account by defining a criminal act to include “conscious possession or control of property.”

Note the word “conscious” in the above description. This word means that you need to have knowledge of what you possess for the possession to be criminal.  Mere possession is the term used to indicate that a possession is not “conscious”—the person does not know what they possess.

References and Further Reading

“Possession.” West’s Encyclopedia of American Law.  Retrieved September 26, 2018 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/possession


Modification History

File Created:  07/12/2018

Last Modified:  09/26/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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