Introduction

Possession as Criminal Conduct

Introduction

Criminal law punishes conduct, and the Model Penal Code states that premise in § 2.01(1): a person is not guilty of an offense unless liability rests on conduct that includes a voluntary act, or on the omission to perform an act the person was physically capable of performing.¹ This requirement is usually called the actus reus, the guilty-act element of a crime. It keeps the law from reaching bare thoughts and bad character, because a person who has done nothing and failed to do nothing has given the state no conduct to punish. Possession offenses strain that premise. To possess something is to stand in a relationship to it, and that relationship can continue while the possessor sits perfectly still. A person arrested in a chair with a pistol in a coat pocket made no movement at the moment of arrest, yet the pistol was there. If the statute punishes having the weapon, the question is where the voluntary act lies, and whether the offense really punishes an omission to get rid of the weapon, which would require some duty to act.²

The Code answers in § 2.01(4) by deeming possession an act, but only under one of two conditions. Either the possessor knowingly procured or received the thing possessed, or the possessor was aware of his control of it for a period long enough to have been able to terminate the possession.³ Each condition locates voluntariness somewhere other than in the stillness at the time of arrest. Under the first, the voluntary act is the acquisition, so the buyer who takes a gun and puts it in a coat pocket acted when buying and accepting it, and the later stillness merely continues what that act began. Under the second, a possessor who did not knowingly acquire the item, perhaps because it was slipped into a bag, becomes answerable once he discovers it and keeps it past the point where he could have ended his possession, since continued possession is by then a choice. The same conditions exclude the person who never learns of the item. A traveler whose bag a smuggler has loaded with heroin has neither knowingly received the drugs nor become aware of controlling them, and most courts likewise read an awareness requirement into possession statutes even when the text is silent.⁴ Section 2.01 thus fits possession inside the voluntary-act requirement and leaves the requirement itself unchanged.⁵

The lesson follows that thought in order. It begins with the baseline act requirement, including what counts as a voluntary act and when an omission can support liability, because § 2.01(4) makes sense only against that background. It then takes up the possession rule itself and the forms possession assumes in the cases: physical control of an item, control over a place where it is found, and control shared with others. After that comes the mental state that a possession offense layers on top of the act, followed by the limit that mere presence places on what the prosecution may prove. The lesson closes by separating criminal possession from the different meanings the word carries in property law and in theft offenses. The next section starts with the voluntary-act rule on which all of this depends.