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Constructive Possession – When is that contraband yours?

Two recent appellate court cases both discussed the constructive possession of a weapon and both reached different conclusions.

In People v. Spencer, 2012 IL App (1st) 102094 (Feb 2, 2012), the defendant was convicted of unlawful use of a weapon in that defendant unlawfully possessed a handgun.

The police executed a search warrant of defendant and of a home. When the police entered the home they claimed to have seen the defendant run toward the back of the house and he was arrested in the backyard. Upon searching the house the police found some ammunition, cash, and cannabis and several items that indicated that defendant was living in the home. After being read his Miranda rights defendant made a statement that “if you had my kind of money, you’d have a gun, too.” The police then searched the kitchen and found a revolver on top of a kitchen cabinet.

Defendant called several witnesses some of which testified that defendant did not live in that home.

The court found defendant guilty. Defendant appealed.

In order to prove constructive possession the state must prove (1) that the defendant had knowledge of the presence of the firearm and ammunition and (2) that he exercised immediate and exclusive control over the area where the firearm and ammunition were found. Control, the court went on to explain, is established when a person has the intent and ability to maintain control over an item even if he lacks personal present control. The persons control over the area where a weapon is found gives rise to an inference the he possessed the weapon and the trier of fact can rely on reasonable inferences.

The appellate court stated that running from the house would support a reasonable inference that defendant had knowledge of the presence of the gun and ammunition. This of course makes no sense at all. The defendant could have fled from the house for a number of reasons totally unrelated to his knowledge of the gun. He could have fled because of the cannabis, or because he simply did not want to be arrested. But to presume that he was aware of every item of contraband inside the home simply because if fled challenges commonsense.

The appellate court of the 2nd District reached the opposite conclusion, and what I believe to be the correct one, in People v. McIntyre, 2011 IL App (2d) 100889 (Dec 14, 2011). In this case the defendant was in a car with his codefendant Garcia when the defendant drove Garcia to a home where he believed Garcia was going to fight a man. Instead, Garcia pulled out a gun and started firing.

Here the appellate court stated that to find defendant guilty of possession of the firearm the state must prove that defendant knowingly possessed the gun. The state claimed the defendant constructively possessed the gun. To prove that the defendant possessed the gun, the state must prove that defendant (1) had knowledge of the gun and (2) had immediate and exclusive control over the area where the weapon was found. Here the court found that even though the defendant was aware of the gun, from at least the time it was fired, the state failed to prove the defendant has immediate and exclusive control over it. Here the court correctly reasoned that a person’s knowledge of the location of an item is not equivalent to possession, nor is proximity, nor is the status of the defendant as the owner or driver of the vehicle place him in possession of everything in it. Even where there is joint possession, the evidence must support that the defendant had the ability to exercise control over the contraband.

Here the court found that defendant did not have the ability to exercise control over the contraband.