Frequently Asked Questions About Possession
What is Possession?
To possess an object, you either are in (1) actual possession meaning you are holding or carrying the object about your person, or (2) constructive possession meaning that you have knowledge of the object and you are exercising domain and control over it.
Example: I am in actual possession of my car when I am driving it. I am in constructive possession of my car when I park it and go into the store and retain the keys to it.
What types of Possession are Illegal?
Some of the common Virginia possession charges are:
- Possession of Scheduled Substances, including unauthorized prescription drugs §18.2-250;
- Possession of Marijuana §18.2-250.1;
- Possession of a firearm after being convicted of a felony §18.2-308.2;
- Possession of a firearm on school property §18.2-308.1;
- Possession of a firearm while in possession of drugs §18.2-308.4;
- Possession of credit card forgery devices §182.-196;
- Possession of child pornography §18.2-374.1:1; and
- Possession of burglarious tools §18.2-94
How are Possession Charges Punished?
The severity of the punishment depends upon the seriousness of the possession and other surrounding facts of the case. A simple first-time possession of marijuana, while still illegal in Virginia, is punished by a civil penalty.
However, possession of a firearm about one’s person while in possession of a Schedule I/II Substance, with intent to distribute, is punished by a five (5) year mandatory minimum prison sentence.
What are the offenses for possession in Virginia?
Possession can be as low as a civil penalty or as high a felony depending on the charge and the type of possession.
How to Win a Possession Charge?
A possession charge is won by arguing one or more of the following:
- the person had no knowledge of the illicit object
- the person had no domain and control over the object
- suppression of the found evidence due to a constitutional violation
- the object is not illegal to be in possession of
Let us look at each defense a bit closer:
1. KNOWLEDGE
It is critical the person did not make any statements about the object to argue that they had no knowledge of it. A common statement a defendant will make is, “I was holding it for my friend. It isn’t mine.”
Possession and ownership are two separate and distinct issues. If I lend my car to my girlfriend, I have not given her the title to the car, but I have let her take possession. Therefore, if you show the police you have knowledge of the object by disclaiming ownership, this defense will fail.
This defense is best used when no statements are made about the object.
****ALWAYS REMEMBER YOU ARE NOT REQUIRED TO TALK TO THE POLICE****
2. DOMAIN AND CONTROL
To argue a person did not have domain and control over an object, the object must not be physically on or about the person i.e., no actual possession. The object must be out of the hands of the person, not under lock and key maintained by the person, and not protected by the person.
A possible scenario in which this defense might work is where a person leaves the object in a public location and abandons it. The prosecution will then have to prove it was controlled at a different point, but if they cannot, then this defense might work.
It is important to note that in practice, this defense goes hand-in-hand with knowledge in a constructive possession case. Meaning that if knowledge cannot be proven and the object is not physically close to the person, then a not guilty verdict is likely.
3. CONSTITUTIONAL VIOLATIONS
This is the meat and potatoes in defending and winning possession cases. You have certain constitutional rights that, if violated, can lead to the exclusion of damaging evidence to a defendant’s case.
The tool used to address a constitutional violation is typically a Motion to Suppress and in some very egregious violations, a Motion to Dismiss.
These are filed by your lawyer and argued in open court with your presence. If the Motion is granted by the judge, your case may be dismissed.
MOTION TO SUPPRESS
We use motions to ask the court to do something. A Motion to Suppress is asking the court to suppress, or exclude, certain evidence obtained in violation of an individual’s constitutional rights.
In the criminal defense context, we are mostly looking at the 4th Amendment right against unreasonable searches and seizures and 5th Amendment right against self-incrimination which is when there is a custody interrogation without Miranda warnings read.
It is important to note that just because a constitutional right of yours is violated does not mean that the evidence is automatically excluded from trial.
There are several exceptions to the exclusionary rule and whether the violation in your case leads to a dismissal is based on the totality of the circumstances in your situation.
MOTION TO DISMISS
A Motion to Dismiss is asking the court to dismiss or “throw out” the case because the constitutional defects are so great that there is no possibility that the defendant can obtain a fair trial.
Here we are invoking the 14th Amendment of the Constitution and claiming an egregious Due Process violation.
This is where material or exculpatory evidence is destroyed by the government in bad faith, where a person’s right to collect exculpatory evidence for the defense is denied in violation of a statute or code, or another scenario in which the process is so flawed that it is constitutionally invalid.
4. LAWFUL POSSESSION
This defense is most successful when the police simply got it wrong.
In gun cases, there are times when a person has the same name as another person, one is a felon, and the other is not. The police see the gun, look up the person’s name and see the felon.
Police will often charge first because they only need probable cause and fix later, after further investigation.
In prescription drug cases, a person carries a baggie of the prescription pills for the week but doesn’t have the prescription with them. The police will charge unlawful possession, but later the prosecution will dismiss the charge if a valid prescription is shown and it was valid at the time of the arrest.
In other drug cases, the substance must be sent to a lab to determine what the chemical composition is and whether it is a scheduled substance. If the lab determines that it is not an illegal substance on the lab sheet, then perhaps there was no crime.
What Should I Say to the Police?
If you are being investigated for a possession crime, or any crime, you should not speak with the police. I repeat, you should not speak with the police.
Nothing you say will likely change the mind of the officer, and what you say that incriminates you, will be used against you in court.
The most you should say to an officer is, very clearly, “I want a lawyer.” It is important that you use those words. Do not ask if you need a lawyer or ponder about whether you think you want a lawyer. You must say, “I want a lawyer.”