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What Is Criminal Possession?

Someone who knowingly possesses a prohibited item or substance can be arrested and charged with criminal possession.
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  • Written By: M. Lupica
  • Edited By: John Allen
  • Last Modified Date: 04 September 2014
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Criminal possession is a legal theory that criminalizes simply the possession of a prohibited item. Generally, the possession has to be “knowing,” which means that the person being held criminally liable for such possession must have known that they were in possession of a legally prohibited item. Additionally, the charged party need not have the item on their person in order to be held liable. As long as the prohibited item is within their sphere of control, then constructive possession may be established. There are many different policies behind criminal possession, though they are generally designed to discourage the use of prohibited items.

Criminal possession statutes generally only require the charged party to possess the item long enough that they may ascertain the nature of the item and have had the opportunity to get rid of it before becoming liable. The possession usually must be “knowing,” which means that the charged party is aware of the illegality of the possession. The charged party may not, however, use the fact that they were not aware of the nature of the item as a defense to criminal possession if they in fact avoided learning what the item actually was. In that case, they will still be deemed to have knowingly possessed the item.

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The fact that the prohibited item is “possessed” does not necessarily mean that the item is on the person of the charged party. As long as the item is within the control of the charged party, it is said to be “constructively” possessed. The concept of constructive possession most often comes into play where someone is pulled over while driving and there is contraband in the car. The charged party may also be considered to have constructively possessed contraband that is located in their residence, though in residences with multiple tenants, “control” may be inferred based on the particular living arrangements.

Criminal possession statutes are typically designed to discourage the use of certain prohibited items, as is the case with statutes that criminalize the possession of illicit drugs, though governments use such statutes to encourage or discourage other behavior as well. Statutes that make the possession of an unlicensed firearm illegal are designed to encourage the registering of firearms and discourage illegal sales of firearms. Criminal possession of stolen property statutes are designed with the purpose of discouraging the resale of such property and encouraging anyone who comes across such property to turn it in to the proper authorities.

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