6. Possession

Question 1

Possession definition

Answer 1

Act of acquisition + failure to divest

Question 2

Possession MPC

Answer 2

possession is an act…if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession

Question 3

To prove possession =

Answer 3

physical control (or intent and authority to control) + knowledge of existence of item + knowledge of what item is
-	Can get out if you weren’t given the opportunity to divest yourself (must divest the moment you know you have it and know what it is)

Question 4

US v. Nevils

Answer 4

• LAPD officers found Nevils asleep with two firearms (his lap and leg). Charged with 1. Felon 2. In knowing possession of firearm, 3. Firearm in/affecting interstate commerce.
• D said he was at a party and got drunk, friends took him to that apartment to pass out, no firearms/drugs, first aware of them when police arrived
• 9th Circuit said firearms physically touching him was not sufficient to constitute knowing possession (2nd element) (consciously possessed what he knew to be a firearm)
• Said the knowledge and intent to control falls short of requirement
• 9th circuit en banc reversed the decision – only have to ask if a reasonable jury would reach that conclusion

Question 5

US v. Kitchen

Answer 5

• Undercover feds trying to sell cocaine to D, met with them to complete the buy, went to inspect merchandise, voiced concern about the purity of drugs. His confederate was holding the cash and stayed behind
• Agents said he momentarily held the cocaine, D said he never touched it. Charged with possession of drugs.
• Court said momentary holding (or just physical holding) does not constitute possession
• Didn’t show that he had control or authority over the drugs
• Sale of drugs was incomplete, no transaction took place, didn’t have the ability to control the drugs, despite the fact he momentarily held it (need domain or control)