"actual" and "constructive" Possession in Alaska: Clarifying the Doctrine

• Publication year: 2019

§ 36 Alaska L. Rev. 1. "ACTUAL" AND "CONSTRUCTIVE" POSSESSION IN ALASKA: CLARIFYING THE DOCTRINE

Alaska Law Review
Volume 36, No. 1, June 2019
Cited: 36 Alaska L. Rev. 1

"ACTUAL" AND "CONSTRUCTIVE" POSSESSION IN ALASKA: CLARIFYING THE DOCTRINE

Chad Flanders ^[*]

ABSTRACT

In two cases, one recent and one now nearly a decade old, Judge David Mannheimer has raised important questions about Alaska's jury instruction on "possession." In particular, Judge Mannheimer has expressed a worry that Alaska's definition of "constructive possession" invites juries to find possession where the defendant is only near an object and has knowledge of its presence. As Judge Mannheimer correctly points out, such a definition is too expansive. But how can we avoid this problem?

My short article takes Judge Mannheimer's opinions in Alex v. State and Dirks v. State as the starting point for an investigation of Alaska's possession doctrine. After summarizing the two opinions in Part II, Part III attempts to clarify the seemingly straightforward idea of "actual possession," and finds that many courts wrongly treat many cases of actual possession as cases of constructive possession. Part IV tries to provide a solution to the problem-as presented by Judge Mannheimer-with Alaska's instruction on constructive possession. It offers that the key to constructive possession is not the idea that one intends to have control over an object, but that one has a legal right (or the functional equivalent of a legal right) over the object, or the space where the object is. If we understand this idea of "authority" as essential to constructive possession, it turns out that pure cases of constructive possession are actually quite rare, and that many supposed cases of constructive possession are really cases of past actual possession. Part V proposes a new jury instruction on actual and constructive possession.

I. INTRODUCTION

Consider the following three cases, each ostensibly dealing with a case of criminal "possession":

After he is arrested outside of a nightclub, police search a man and find car keys on him. The keys lead to his girlfriend's car, parked nearby. Inside the car the police find two guns, one under the front passenger seat, and another in the trunk. The girlfriend says - and the police believe her - that the guns were not in the car when she lent it to him. A fingerprint matching the man's is found on one of the guns. The man, who has a prior felony conviction, is charged with being a felon in possession of a firearm. On what theory of possession, actual or constructive, is the charge properly justified, and can the theory be justified as to both guns? ^[1]

***

A man is found unconscious on his couch. In front of him on the coffee table is a small quantity of drugs, along with some drug paraphernalia. He is the owner of the apartment in which he is found and there is no evidence that anyone else lives there, or even that anyone has recently visited. No drugs are found on the man's person, and the drugs and drug paraphernalia have no DNA or fingerprints that would tie them to the man. Does he possess the drugs, and if he does, is the possession actual or constructive? ^[2]

***

A woman arranges the purchase of a large quantity of drugs. In exchange for money, she receives a key to a storage locker. The drugs are in the locker. She is arrested before she accesses the drugs in the storage locker. After the police open the locker and find the drugs, she is charged with possession with the intent to distribute. She argues that she never, in fact, has possessed the drugs, either under a theory of actual or constructive possession. Is she right that she never "possessed" the drugs? ^[3]

***

Despite the high number of possession cases, and their importance, ^[4] what counts as sufficient for a conviction for "criminal possession" remains unclear. ^[5] These cases, where possession can seem difficult to define are not bizarre cases, stretching our notion of what it means to possess something, but common, everyday cases like the hypotheticals above: cases where drugs or guns are not found on a person, but near a person, or on that person's property. The difficulties are compounded when we introduce the purportedly helpful distinction between actual and constructive possession - two concepts that courts have not consistently applied. Courts have a tendency to group all possession that does not involve finding the relevant contraband on the person into the category of "constructive possession," or even to treat actual and constructive possession as points on a continuum, as a matter of degree rather than of kind. ^[6]

In a pair of cases, one very recent ^[7] and one now over a decade old, ^[8] Judge David Mannheimer of the Alaska Court of Appeals has suggested that Alaska's instructions regarding possession need to be rethought, particularly when it comes to the distinction between "actual" and "constructive" possession. Part of Judge Mannheimer's concern over the instructions stems from cases where juries are instructed as to both actual and constructive possession, when in fact only actual possession was at issue, risking juror confusion. But Judge Mannheimer's deeper worry is that the definition of constructive possession given in the pattern instructions is simply mistaken, as it allows for a finding of constructive possession just when a person is near contraband and is aware that it is contraband. The current instruction, Judge Mannheimer warned in both of these cases, runs the risk that juries will find possession when in fact there is only proximity and knowledge, which may be necessary for possession in some cases, but not sufficient.

This paper takes Judge Mannheimer's two opinions as an invitation to try to clarify the law of possession in Alaska, and to suggest a helpful amendment to the current jury instructions regarding "possession." Part I summarizes Judge Mannheimer's two opinions, Dirks and Alex, and elaborates on what Judge Mannheimer sees as the difficulties with Alaska's law of possession. In both opinions, Judge Mannheimer stops short of giving his own solution to the problem he finds in the current Alaska jury instructions, although he does give some recommendations. Parts III and IV work towards a solution. Part III attempts to clarify the seemingly straightforward idea of actual possession. Many cases where courts see "constructive possession" are in fact cases of "actual possession." Courts confuse past actual possession with constructive possession as a result of construing "actual possession" too narrowly. In fact, many times, courts should instruct only on actual possession, as when a jury only needs to infer that at some point the defendant was in actual physical control of the contraband. Part IV outlines pure cases of constructive possession, which are quite rare: cases where a person never has the contraband on his or her person, but has a legal right, or something approximating a legal right, to the contraband or the place where the contraband is located. Although there can be cases where a jury should be instructed on both actual and constructive possession, they are still two distinct types of possession, not mere variations on one another, as is sometimes suggested. Part V offers concluding remarks, as well as a proposal for revised jury instructions on "possession."

II. ALEX AND DIRKS

In two cases, Alex and Dirks, Judge Mannheimer spends several pages questioning the basis of Alaska's jury instructions on possession, especially as to how they articulate "constructive" possession. In both cases, the discussion is likely dicta, or at least Judge Mannheimer presents it as such. In Alex, Judge Mannheimer says that if there was possession in the case at all, it was actual, and not constructive. ^[9] And in Dirks, Judge Mannheimer characterizes the state's case as one of actual and not constructive possession. ^[10] Both cases present Judge Mannheimer with an opportunity to show how the idea of constructive possession can be confusing, potentially misleading juries and lawyers. While Judge Mannheimer does not solve the problem of Alaska's possibly erroneous instructions on possession by offering his own model instruction, he does point to some things to avoid. If there is to be something like "constructive possession," Judge Mannheimer concludes, it cannot amount to only (a) having knowledge that the object is there, and (b) being near the object. ^[11] There has to be something more for the object to be constructively possessed. Although Judge Mannheimer does not specifically identify what that is, he presents two alternatives to consider: there has to be some right or authority over the object; or there has to be some intention to control the object. ^[12]

Even though Judge Mannheimer says Alex and Dirks are actual possession cases, one can see from their facts how they could involve constructive possession. The facts in both cases are very similar. In Alex, during a traffic stop, an officer asked Alex and the driver, Leonard Torres, to step out of the vehicle. ^[13] Apparently, Alex then told the officer that there was a gun under the passenger seat of the vehicle. ^[14] Because Alex was a convicted felon, he was prohibited from possessing a firearm, and was charged under Section 112.61.200(a)(1) of the Alaska Statutes. ^[15] Dirks was also a firearm case. This time, however, the gun was in the backseat of the car and Dirks was in the...