Possession as an Act

Possession as an Act

Section 2.01(1) allows liability only when it rests on conduct that includes a voluntary act or the omission to perform an act the person was physically capable of performing.¹ Possession fits that formula awkwardly, because holding something is a state of affairs rather than a bodily movement, and possession is not, strictly speaking, either an act or an omission.² A person with a bag of cocaine in a closet is doing nothing with it at any given moment, so without a special rule possession offenses could never satisfy the act requirement. Section 2.01(4) closes that gap by declaring that possession is an act if the possessor knowingly procured or received the thing possessed, or was aware of his control of it for a sufficient period to have been able to terminate his possession.³

The two alternatives share one design: each ties possession to something the person chose. The first looks to a choice at the moment of acquisition, when the possessor knowingly took the item into custody. The second looks to a choice made later, when a person who acquired the item unknowingly became aware of it and then kept it longer than was needed to give it up. Behind both lies the reason the law demands a voluntary act at all: conduct that a person neither chose nor knew about cannot be deterred, and a person who did not choose it does not deserve punishment for it.⁴ Without § 2.01(4), a possession statute would reach whoever happened to be holding contraband, including a person to whom it was handed without notice. With the rule, the prosecution must show a knowing acquisition or an awareness of control lasting long enough to end it, and a person who had neither falls outside the offense.

The Code's test sorts familiar situations cleanly. A buyer who purchases an illegal gun and puts it in a coat pocket has taken possession by an affirmative act.⁵ The result changes when a smuggler hides heroin in a respectable traveler's baggage, hoping to retrieve it later. If the traveler is searched and the drugs are found, most courts refuse to uphold a possession conviction, because they read possession offenses to require awareness of having the item even when the statute is silent, and the Code's awareness requirement reaches the same result.⁶ Not every court agrees. In State v. Bradshaw, 98 P.3d 1190 (Wash. 2004), a commercial truck driver crossed into Washington hauling a semitrailer on which someone had hidden 77 pounds of marijuana between pallets of cargo, and although nothing showed the driver knew of the drugs, the Washington Supreme Court upheld a possession conviction and rejected the argument that awareness is inherent in possessing.⁷ Under § 2.01(4) the same facts supply no act of possession, because nothing shows a knowing receipt or an awareness of control.

Decisions that do not use the Code's wording reach the same boundary. In the Kimbrell prosecution for trafficking in cocaine, the court explained that an accused possesses contraband when there is both power and intent to control its disposition or use, that actual knowledge of the drug's presence is strong evidence of that intent, and that possession may be inferred from circumstances.⁸ That court also held that the defendant was entitled to a jury charge that mere presence where drugs are found is not sufficient to convict without more, and that refusing the charge was reversible error.⁹ Presence is evidence a jury may weigh with other facts, and it does not by itself supply the knowledge that turns proximity into possession. Students lose this issue when they treat proximity to contraband as possession, because the Code asks what the person knew and chose, and a bag in the same car, closet, or room answers neither question.¹⁰

Possession statutes are generally read to require conscious possession, and that reading follows from the act requirement.¹¹ The constitutional floor points the same way: possession can qualify as an act, but the mere unwitting possession of an item cannot be declared criminal.¹² The awareness required concerns the physical object and not its specific quality, so a person may possess narcotics while believing the substance is something else, although that belief may defeat a conviction if the offense requires a mental state the person lacked.¹³

The two scenes differ only in whether the person knew he was holding the envelope, and that knowledge decides the act element. What the person knew about the contents belongs to the mental state element, the same separation between act and mental state drawn earlier in this chapter. The second alternative in § 2.01(4) also links possession back to omissions, because a person who first realizes that drugs are in his control and does not end possession within a sufficient period has failed to act in the face of a legal duty to do so.¹⁴ The two routes are taken in turn below, beginning with knowing procurement or receipt.

Knowing Procurement or Receipt

The first alternative in § 2.01(4) is the simpler of the two ways for possession to count as an act: the possessor knowingly procured or received the thing possessed.¹⁶ The two verbs describe the two ways an item comes under a person's control. To procure is to go and obtain something, as a buyer does who seeks out a seller, and to receive is to accept something that is handed over, as a person does who takes a package from a friend. In both situations the person's own conduct brings the item into custody, and the requirement of knowledge ties that conduct to an awareness of what is being taken. A person who knowingly accepts custody of illegal drugs has therefore performed a voluntary act, and the act requirement is satisfied at that moment.¹⁷ That is the knowing procurement or receipt route.

Locating the act at the moment of acquisition answers the difficulty that possession itself is a passive state. Once the drugs are in the closet, the possessor may do nothing at all and may even be asleep when the police arrive. Under this route that passivity is beside the point, because the conduct on which liability rests is the earlier step of taking the item, and that step was a bodily choice. The simplest illustration is a buyer who purchases an illegal gun and puts it in a coat pocket, which is an affirmative act of taking possession.¹⁸ Knowingly receiving an item is likewise a sufficient act to serve as the basis of a possession offense.¹⁹

The same line appears in an English decision from 1853, Dugdale v. Regina. An indictment there charged possession of obscene matter with intent to sell, and it was held not to charge a crime because it alleged no act, while an indictment charging that the defendant procured the matter with intent to sell did allege one.²⁰ The choice of verb did the work. Possessing names a condition, whereas procuring names something a person does, and the first alternative in § 2.01(4) preserves exactly that distinction by making the knowing taking, rather than the continuing holding, the act.

The clause has two parts, and each has its own logic. The word knowingly is the part that supplies the choice. The voluntary act requirement rests on the ideas that involuntary behavior cannot be deterred and that a person who did not choose a wrongful act does not deserve punishment for it.²¹ A knowing acquisition satisfies both ideas, because someone who knows that custody of an item is being transferred makes a decision that the threat of punishment can influence, and the decision belongs to that person. The second part, the phrase the thing possessed, fixes what the knowledge must be about. The awareness required concerns the physical object and not its specific quality or properties, so what must be known is that the item is in one's custody, and a person who chose to take the object chose to take it whether or not aware that the law forbids holding it.²² A defendant's belief that the substance is something other than a narcotic may still defeat a conviction, but only because the offense's mental state requirement is unmet, and that belief does not erase the act.²³

The two scenes differ only in whether Delgado knew the package was being placed in his control, and that single fact decides the act element. Everything else, including the drug, the closeness of the package, and Delgado's lack of awareness of the statute, is the same in both. Students lose this issue when they demand proof of knowledge of illegality as part of knowing receipt, because the clause asks whether the person knew of having the item and says nothing about whether the person knew the item was forbidden.²⁴ The flipped scene leaves one question open: a person who acquired the item without knowing may still become aware of it later and keep it. That situation falls under the second alternative in § 2.01(4), taken up next.

Awareness and Time to Terminate

The first route to an act of possession fails for a person who did not know when the item arrived, but § 2.01(4) supplies a second route for that person. Possession is an act if the possessor was aware of his control of the thing for a sufficient period to have been able to terminate his possession.²⁶ The clause sets two conditions, and both must be met. The possessor must have become aware of the control, and that awareness must have lasted long enough for the possessor to end it. This is the awareness and time to terminate route, and it covers the person who found a package in a borrowed bag, or who learned that a guest had left something in a closet, and then kept it.

The act in this route cannot sit at the moment of acquisition, because the person did not knowingly take anything. The conduct on which liability rests is what comes afterward: the person knows about the item, keeps it, and does nothing to give it up. That failure to terminate possession is an omission in the face of a legal duty to end the possession.²⁷ Retention after awareness of control is therefore treated as a sufficient omission to support a possession offense, just as a knowing receipt is a sufficient act.²⁸ The duty to act, as with other omissions, presupposes knowledge of the facts that call for action. That is why the awareness condition matters so much. Decisions that uphold possession convictions without any awareness, such as the Washington truck-driver case discussed above, draw the objection that they impose a duty to act on someone with no reason to think anything needed doing.²⁹

Each condition has its own reason. Awareness supplies the choice. The voluntary act requirement rests on the ideas that involuntary behavior cannot be deterred and that a person who did not choose a wrongful act does not deserve punishment for it, and a person who does not know that an item is in his control has made no choice about it.³⁰ The sufficient-period condition does subtler work. An omission can fairly be charged only against someone who had a realistic chance to act, so a person who learned of the item a moment ago has not yet omitted anything he could have done. Punishing that person would punish a state of affairs he had no means of ending. Once enough time has passed, however, continued holding reflects a decision not to give the item up, and the law treats that decision as the act.

The Code states no number of minutes, hours, or days. The question is whether the awareness lasted long enough for this person, in these circumstances, to end the possession, so the answer turns on facts such as how long the person knew and what means of disposal were realistically at hand, whether discarding the item, surrendering it, or leaving it behind. The trap is to look for a fixed number of minutes or days that the Code does not contain. Awareness itself is usually proved from circumstances. The Kimbrell court, addressing knowing possession of cocaine, explained that actual knowledge of a drug's presence is strong evidence of the intent to control it and that possession may be inferred from circumstances, and it also held that mere presence where drugs are found is not enough without more.³¹

The two scenes differ only in how long Tran was aware before she was caught, and that single variable decides the act element. The drug, the coat, and her ignorance at the start are identical in both. The same boundary explains why a person who never becomes aware stands outside both routes of § 2.01(4), which is why the Code reaches a different result from the Washington decision upholding the conviction of a driver with no evidence of awareness.³² A driver who merely should have suspected that something was wrong presents a harder case, because the clause speaks of awareness of control, so the prosecution needs evidence from which a jury can find that the driver actually knew, and circumstantial evidence may supply it. The awareness required concerns the physical object and not its specific quality, so a person who knows he is holding the package is aware of control even if he is wrong about the contents, although that mistake may defeat a conviction if the offense requires a mental state he lacked.³³