In Illinois the difference between actual and constructive possession is explained by Illinois Pattern Jury Instruction 4.16 defining possession.
IPI 4.16 Actual v Constructive Possession
See IPI 4.16.
Criminal possession of contraband may be actual or constructive.
Actual Possession Definition
Actual possession is proved by testimony which shows that defendant has exercised some dominion over the contraband. This means the defendant had the contraband on his body, tried to conceal it, or seen carrying the item.
Mere proximity is not sufficient evidence to prove actual possession.
Constructive Possession Definition
Constructive possession exists where there is no personal dominion over the contraband, but the defendant has control over the area where the contraband was found.
To establish constructive possession, the State must prove beyond a reasonable doubt that defendant
(1) Knew the contraband was present and
(2) Exercised immediate and exclusive control over the area where the contraband was found.
- Constructive possession does not require actual present dominion over the substance, but can be inferred through an “intent and capability to maintain control and dominion.”
- A defendant’s lack of control of the premises will not preclude a finding of guilt if the circumstantial evidence supports an inference that the defendant intended to control the contraband inside.
- Mere presence at the scene, even coupled with flight, is not enough to satisfy the State’s burden of proof.
- Knowledge may be shown by evidence of defendant’s acts, declarations, or conduct from which it can be inferred that he knew the contraband existed in the place where it was found.
Control may be shown by evidence that defendant had the intent and capability to maintain control and dominion over the handgun, even if he lacked personal present dominion over it.
Criminal Possession Cases
1) People v. Wright, 2013 IL App (1st) 111803, ¶ 26, the appellate court reversed the defendant’s conviction of aggravated unlawful use of a weapon because the State failed to sufficiently prove the defendant knowingly possessed the gun. This was so because the State was unable to prove beyond a reasonable doubt that the defendant “exercised exclusive or immediate control over the area where the weapon was found.”
There, the gun was found underneath the defendant’s torso after he had fallen down stairs at the same time as another man. The defendant was one of five people in the immediate area of the basement of a residence that was not the defendant’s.
2) In People v. Sams, 2013 IL App (1st) 121431, ¶ 13, the reviewing court found the State had failed to prove the defendant constructively possessed the weapon found underneath a couch in a residence that was not the defendant’s, but one that the defendant was seen exiting. The court noted the police officers’ “testimony shows only that [the] defendant walked out of a house in which a gun was later found. Mere presence in the vicinity or access to the area in which contraband is found is insufficient to establish constructive possession.” Sams, 2013 IL App (1st) 121431, ¶ 13.
3) People v. Tates, 2016 IL App (1st) 140619 (August). Episode 230 (Duration 5:59) (there was no evidence defendant was aware of the narcotics hidden in the water cooler and refrigerator and no evidence, other than (i) his presence in the dining room where cannabis was in plain view and (ii) his flight from police, to demonstrate his constructive possession)
4) People v. Fernandez, 2016 IL App (1st) 141667 (December). Episode 283 (Duration 3:57). There was insufficient evidence of habitation to tie defendant to the contraband found in the search of this home.
5) People v. Anderson, 2018 IL App (4th) 160037 (May). Episode 500 (Duration 10:00). There is a difference between constructive possession and having immediate access to a gun.
The charges against defendant stem from an encounter between detectives from the Decatur Police Department’s street-crimes unit and three males, one of whom was defendant.
Defendant was convicted of of armed violence predicated on unlawful possession of a controlled substance while armed with a handgun, a Category I weapon (720 ILCS 5/33A-1(c)(2), 33A-2(a)), unlawful possession of a weapon by a felon, and unlawful possession of a controlled substance with intent to deliver.
The three males were walking in the middle of a street at approximately 11:30 p.m.
One officer asked defendant to come toward him. Rather than comply with the officer’s request, defendant fled on foot in the opposite direction. Both officers gave chase and were able to take defendant into custody after he fell over a brush pile in a nearby residential backyard.
Officers found a black Glock 27 handgun lying approximately two to three feet in front of defendant. In defendant’s right pocket, officers found seven bags of cannabis and a separate bag containing nine individually packaged bags of suspected crack cocaine.
The question here is whether the weapon found a few feet from defendant qualifies as the available access to the gun that the legislature sought to avoid.
Our supreme court has emphasized the purpose of the armed-violence statute is to deter felons from using dangerous weapons, thereby minimizing the deadly consequences that may result when a felony victim resists. People v. Condon, 148 Ill. 2d 96, 109 (1992).
That is, a defendant violates this statute by simply having possession of a firearm during the commission of another predicate felony. Thus, for the purpose of the statute to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon. A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision. See Condon, 148 Ill. 2d at 109 10.
The supreme court has further refined the definition of “otherwise armed” to mean having immediate access to or timely control over the weapon.
Unlawful Possession of A Weapon By A Felon
The State also charged defendant with unlawful possession of a weapon by a felon. 720 ILCS 5/24-1.1(a). A defendant violates this statute if he
“knowingly posses[es] on or about his person *** any firearm *** if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a).
“A person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(c)(1).
Like the proof required for a conviction for armed violence, the State must prove beyond a reasonable doubt the defendant possessed the gun. This element may be satisfied with proof the defendant had constructive possession, i.e., he knew of the gun and it was in his immediate and exclusive control. People v. Hester, 271 Ill. App. 3d 954, 961 (1995).
Defendant’s hands were “tucked inside towards the front of his waistband” as he fled from the police, and while he was still on the ground being secured, the gun was found two to three feet away. From this evidence, we find it was reasonable for the jury to believe defendant was armed with the handgun while he was being pursued by the police.
A rational trier of fact could have reasonably concluded, at the time defendant was a convicted felon, he had knowledge of the firearm and exercised immediate and exclusive control over the area where it was found. The jury was entitled to infer defendant was indeed carrying the weapon on his person before he fell.
Thus, we find the evidence was sufficient to support the conclusion defendant had possession of the handgun recovered at the time of his arrest.
What About The Armed Violence Charge?
Defendant also argues he was not in possession of the handgun at the time of his arrest, thus he could not be considered “armed with a dangerous weapon” for the purposes of his armed-violence conviction.
In Smith, the supreme court concluded the defendant did not have the required access to or control over the weapon in question at the time the police entered the residence because the defendant had dropped the gun out of a window. Smith, 191 Ill. 2d at 412. The court found that allowing a conviction for armed violence to stand against this defendant “would not serve, but rather would frustrate, the statute’s purpose of deterring criminals from involving themselves and others in potentially deadly situations.” Smith, 191 Ill. 2d at 413.
Here, a reasonable jury could have found from the evidence defendant possessed the gun in question in that he was likely carrying the gun on his person during the police pursuit and then either dropped it or discarded it when he fell.
Regardless, defendant had “immediate access to or timely control over the weapon” while he committed the felony offense of unlawful possession of a controlled substance.
Viewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could have found beyond a reasonable doubt defendant, a convicted felon, had knowledge of, and had immediate access to, the loaded handgun.
We find the facts of this case further the deterrence purpose of the armed-violence statute in that defendant had immediate access to this weapon and, as the legislature recognized, a felon with immediate access to a weapon was predisposed to use it when confronted with resistance, either from victims, law enforcement representatives, or other criminals.
It was reasonable for the jury to conclude this loaded weapon was immediately accessible to defendant before and during defendant’s arrest so that he was “otherwise armed,” as that term is defined, during the commission of the predicate felony of unlawful possession of a controlled substance.