POSSESSION: A CRIMINAL LAW GUIDE
There are all kind of things the government tells you it is illegal to possess. Drugs, guns, and property, make up the most popular no nos. But what is possession under Illinois law? How is it defined, and more importantly how is it proven by the State?
HOW DOES ILLINOIS LAW DEFINE POSSESSION?Put in the simplest of terms, the legal definition of possession and the State's ability to prove this offense is defined by two components: 1. Knowledge; and 2. Control.
Knowledge is defined by the Illinois Supreme court as the conscious awareness that circumstances exist and/or the awareness of the substantial probability that the fact exists. This legalese basically boils down to the ordinary concept of awareness. Was the person aware of the illegal contraband? More importantly, how can this awareness be proven?
Under Illinois law, a person can control something in two ways: actual possession or constructive possession. Actual possession is exactly how it sounds. The item is on your person in some exclusive and immediate manner, be it in your pocket, in your wallet, or in a body cavity, etc. Constructive possession is defined by one's ability and intent to control an item. Most significantly, if two or more persons share the power to control a thing, each person can be charged with possession of the contraband. A common example of this is when contraband is found in a vehicle with multiple occupants, all occupants can be charged with possession.
HOW DOES THE STATE PROVE POSSESSION?For both knowledge and control, the type of evidence gathered by police and used by the State at trial are divided into two categories: direct and circumstantial evidence.
Direct Evidence: Illinois caselaw recognizes that direct proof of knowledge is often rare but may be established by acts, declarations or conduct of the defendant which support the inference of knowledge. If drugs are found in your pocket, that is direct evidence of possession. However, often the most common and damaging evidence of knowledge in possession cases comes from the defendants' themselves. Their statements can be used as both direct and circumstantial evidence of knowledge. More often than not, the evidence the cops need to close the knowledge gap comes from the defendant's own admissions. Think about it. It is impossible to get into the mind of another person. This makes proving knowledge extremely difficult. Seasoned law enforcement know that proving knowledge will be one of the most difficult aspects of their case. Therefore, they try and get the defendant to do the work for them. To prove their knowledge out of their own statements. This situation is EXACTLY why you have a 5th amendment right to remain silent. The police know they have the burden of proving the case. They will engage in casual, friendly conversation with defendants during a possession investigation. Do not be fooled, the only reason they do so is to gather more information to prove your knowledge. Do not make their case for them.
Circumstantial Evidence: The Illinois Supreme Court defines circumstantial evidence as the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of a defendant. In the context of a possession case, circumstantial evidence generally revolves around one's proximity to the contraband, any suspicious behavior, any ownership interest in the area where the contraband is located, and any obvious signs of the contraband. Again, in this context, your right to remain silent is critical. While a defendant may not make direct admissions about the contraband, everything a suspect says in a possession investigation is used by the police to connect the dots between the circumstantial evidence. Often, without such statements, there is no way to connect the circumstantial evidence with one's knowledge of, or ability to control, contraband.
HOW TO BEAT POSSESSION CASEWhile the State has to prove knowledge and control beyond a reasonable doubt, these concepts, or rather the absence of them, are the main defenses to defeat a possession case. Just as a successful prosecution for a possession charge revolves around proving the defendant's knowledge and control, a successful defense proves they don't exist.
Common Defenses in possession cases are:
No Knowledge of the illegal item,
Others had the ability to illegal item,
No ability to control illegal item,
Illegal Search and Seizure by the Police