In Illinois possession may be actual or constructive. 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 the exercise of present personal dominion over an item by a person, such as carrying it, handling it, concealing it, or attempting to dispose of it. See People v. Brookhouse, 289 Ill.App.3d 1079 (3rd Dist. 1997).
Mere proximity is not sufficient evidence to prove actual possession.
Additionally, actual possession does not require present personal touching of the contraband, but, rather present personal dominion over it. See People v. Eghan, 344 Ill.App.3d 301 (2nd Dist. 2003) (includes dropping it on the ground to conceal it or sitting 12 inches from a bong with cannabis in it)
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 necessarily focuses on the location of the contraband, thus, the location where the drugs are found is a distinct element of constructive possession.
Constructive possession may be inferred from the defendant’s exclusive control of the premises where narcotics are found. Once it is established that narcotics were found on premises under the defendant’s control, it may be inferred that the defendant had the requisite knowledge and possession for a conviction of possession of a controlled substance.
- 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.
- However, where other circumstantial evidence is sufficiently probative, proof of proximity combined with inferred knowledge of the presence of contraband may constitute sufficient evidence of possession.
- 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.
- People v. Schmalz, 194 Ill.2d 75 (2000) (possession)
- In re K.A., 291 Ill.App.3d 1 (2nd Dist. 1997) (proving possession, Defendant wins this one, SW kid in a raided apartment, didn’t live there, not in plane site, note in there alone)
- People v. Brown, 277 Ill.App.3d 989 (1st Dist. 1996)
- People v. Gore, 115 Ill.App.3d 1054 (3rd Dist. 1983) (defendant wins, he’s a passenger in a car, under his seat but out of reach, everyone denied possession)
- People v. Schmalz, 194 Ill.2d 75 (2000) (“we’re having a party”, possession proved in a house with multiple individuals)
- People v. Ray, 232 Ill.App.3d 459 (1st Dist. 1992) (defendant wins, sitting at a table with drugs in sufficient, 3 people at the table, mere presence in the vicinity insufficient)
- People v. Jones, 278 Ill.App.3d 790 (3rd Dist. 1996) (SW case, defendant wins, he was under some clothes in a closet where crack was found, unclear it was his drugs)
- People v. Long, 369 Ill.App.3d 860 (2nd Dist. 2007) (drugs found under a table is probable cause to arrest defendant who was sitting at the table)
- People v. Lawrence, 46 Ill.App.3d 305 (4th Dist. 1977) (weed on top of the air conditional not attributed to defendant, lays out the problem with multiple defendants)
- People v. Rouser, 199 Ill.App.3d 1062 (attempting to dispose of drugs is constructive possession)
- People v. McNeely, 99 Ill.App.3d 1021 (4th Dist. 1981) (proving constructive possession)
- People v. Eghan, 344 Ill.App.3d 301 (2nd Dist. 2003) (walking behind a truck in parking lot could have proven constructive possession)
- People v. McLaurin, 331 Ill.App.3d 498 (3rd Dist. 2002) (hiding drugs equals intent to exercise control over them, dude went behind a house and police found drugs there)
- People v. Brookhouse, 289 Ill.App.3d 1079 (3rd Dist. 1997) (constructive possession)
- People v. Tomasello, 166 Ill.App.3d 684 (2nd Dist. 1988) (constructive possession)
- People v. Hammer, 228 Ill.App.3d 318 (2nd Dist. 1992) (constructive possession)
- People v. Gomez, 80 Ill.App.3d 668 (2nd Dist. 1980) (constructive possession)
- People v. Ray, 232 Ill.App.3d 459 (1st Dist. 1992) (defendant not in the home but still had control over narcotics)
- People v. Minkin, 133 Ill.App.3d 549 (1st Dist. 1971) (only thing linking defendant to the apartment was the fact that he was there during the raid insufficient to establish his possession)
- People v. Minniweather, 301 Ill.App.3d 574 (4th Dist. 1998) (“intent to exercise control” indicates possession, defendant runs away and found under a patio table and cocaine 5 to 6 feet away)
- People v. Macias, 299 Ill.App.3d 480 (1st Dist. 1998) (keys to the apartment did not indicate control of the area and didn’t necessarily infer knowledge of the drugs, no immediate and exclusive control in this case)
- People v. Adams, 242 Ill.App.3d 830 (3rd Dist. 1993) (SW and defendant is a visitor to the home when police come in, vicinity to cocaine alone cannot sustain a conviction)
- People v. Day, 51 Ill.App.3d 916 (4th Dist. 1977) (car with 6 people and weed everywhere, bag under legs of passenger not shown to be in possession of defendant who was driving)
- People v. Nesbit, 398 Ill.App.3d 200 (3rd Dist. 2010) (defendant making furtive movements in the car and he is only occupant, found guilty)
- People v. Howard, 29 Ill.App.3d 387 (4th Dist. 1975) (3 people in a hotel room, defendant closest to the weed but insufficient to establish possession)
- People v. Juarbe, 318 Ill.App.3d 1040 (1st Dist. 2001) (hidden compartment that makes a distinct grinding noise highly probative of knowledge of the presence of the drugs)
Crimes Of Possession In Illinois
Crimes of Possession
- Unlawful Possession of a Controlled Substance 720 ILCS 570/402
- Unlawful Possession of a Controlled Substance With Intent to Deliver 720 ILCS 550/5
- Unlawful Possession of Cannabis 720 ILCS 550/4
- Unlawful Possession of Cannabis With Intent To Deliver 720 ILCS 550/5
- Unlawful Possession of Methamphetamine 720 ILCS 646/60
- Unlawful Possession of Cannabis Sativa Plant 720 ILCS 550/8
- Possession of Drug Paraphernalia
- Possession of Burglary Tools 720 ILCS 5/19-2
- Possession of a Weapon by a Felon 720 ILCS 5/24-1.1
- Unlawful Possession of a Firearm and Firearm Ammunition 720 ILCS 5/24-3.1
- Possession of a Firearm Without A FOID Card 430 ILCS 65/2
- Possession of a Stolen Firearm 720 ILCS 5/16-16
- Unlawful Possession of a Defaced Firearm 720 ILCS 5/24-5
- Possession of a Fictitious Identification Card 720 ILCs
- Possession of a Fraudulent Identification Card
- Unlawful Possession of Stolen or Converted Motor Vehicle 625 ILCS 5/4-104
- Possession of Child Pornography 720 ILCS 5/11-20.1
- Unlawful Use of a Weapon 720 ILCS 5/24-1
- Aggravated Unlawful Use of a Weapon 720 ILCS 5/24-1.6
Possession vs. Ownership
There is a great distinction between “possession” and “ownership”, and a person may possess something without being owner thereof and, conversely, may own something without necessarily possessing it. See People v. Matthews, 18 Ill.2d 164 (1959).
The fact that immediate and exclusive possession is required does not mean that 1 person can have possession. The law recognizes that 2 or more people may share immediate and exclusive possession or share intention and power to exercise control and that each person legally has possession. See People v. Scott, 152 Ill.App.3d 868 (5th Dist. 1987)
Knowledge of The Item
Knowledge of location of an item, although an element of the crime of possession, is not equivalent of possession. See People v. Harris 34 Ill.App.3d 906 (1975). See also People v. Howard, 29 Ill.App.3d 387 (1975).
- People v. Adams, 161 Ill.2d 333
- People v. Macias, 299 Ill.App.3d 480
- People v. Strong, 316 Ill.App.3d 807 (4 men in a room not enough)
- Minniweather, 301 Ill.App.3d 574
- People v. Lawrence, 46 Ill.App.3d 305 (loses some and wins some)
- People v. Banks, 232 Ill.App.3d 459 (control alone not enough)
- People v. Howard, 29 Ill.App3d 387 (see strong)
- People v. Day, 51 Ill.App.3d 916 (win some lose some)
- People v. Gore, 115 Ill.App.3d 1054 (under driver’s seat)
- People v. Adams, 242 Ill.App.3d 830
- People v. Jones, 278 Ill.App.3d 790 (hiding in a close was a NG)
- In re K.A., 291 Ill.App.3d 1