§ 4-21 Possession—general Charge

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§ 4-21 Possession—General Charge

What does possession mean in the law? The statute says possession of a controlled substance. Possession means more than simply having an object in one's possession. There must be knowing possession. The State must prove possession of the controlled substance by the defendant and the further fact that the defendant knew he had the controlled substance in his possession.

By way of illustration, something may be found in the possession of a person and if that person did not know that he had possession of the item and had not exercised any affirmative act to get possession of the item, but by some accident it came into his possession without his knowledge, there would be no violation of the law. However, if one knowingly has in his possession a controlled substance, then he is unlawfully in possession of that item. The State must demonstrate beyond a reasonable doubt that the defendant was in possession of the object, that he knew he had it in his possession, and that he knew the item was a controlled substance under the law of this State.

The State is not required to show the purpose for which the defendant may have had possession of the controlled substance. That is not a part of the State's required degree of proof. The State must show beyond a reasonable doubt that there was possession of the controlled substance and that the defendant knew he had the controlled substance in his possession.

There are two kinds of possession recognized in the law of this State:

(1) actual possession; and

(2) constructive possession.

Actual possession occurs when the controlled substance is found to be in the actual physical custody of the person charged with possession.

Constructive possession is when a person has dominion or control, or the right to exercise dominion or control, over either the object or the premises upon which the object is located.

Mere presence of a person in an area where the object is found is not enough in and of itself to prove possession. Proof of possession requires more than proof of mere presence at the place where the controlled substance is found. The State must prove the defendant had both (1) the power—that is, actual or constructive control; and (2) the intent to control its disposition or use.

Actual control occurs when the controlled substance is found to be in the actual physical custody of the person charged. Constructive control occurs when the person charged with possession has dominion and control over either the controlled substance or the premises upon which the controlled substance is found.

Constructive control may be established by circumstantial evidence as well as by direct evidence and constructive control may be jointly shared by two or more individuals.

The mere presence of a defendant where the controlled substance is found or the mere association by a defendant with people who possess the controlled substance is insufficient proof that the defendant himself possessed the controlled substance. Possession requires more than mere presence.

Evidence that an individual is present at the time a controlled substance is found or located is not in and of itself sufficient proof that the individual had actual or constructive possession of the controlled substance. Proof of constructive possession by the defendant requires that the State show...