Is Possession Really Nine-Tenths of the Law?

Possession is nine tenths of the law is a common saying. When it comes to a criminal possession charge like drugs, weapons, or minor in possession, you might expect possession to mean guilty. The truth is that what counts as possession is often arguable, and there may be other legal defenses available to you.

Where Does Possession Is Nine Tenths of the Law Come From?

Possession is nine tenths of the law is more of a popular expression rather than an actual legal principle. It first started in property ownership disputes. When two people make a claim to a property, it can be much easier for the person currently occupying and using the property to argue that they have ownership rights of the site.

What Is the Definition of Possession in a Criminal Case?

There are two types of possession in a criminal case. One is that you actually possess something illegal. The other is that you constructively possess something illegal.

Actual Possession

Actual possession means that you were physically holding something. It might be in your pockets, in your hands, or in a bag that you were carrying. There are many cases where a defendant tries to argue that they didn't know what was in their bag or even in their pockets because the bag or pants belonged to someone else. Much of the time, a judge or jury will hold you responsible for anything that you were directly carrying, and it's very difficult to create a reasonable doubt that it wasn't yours.

Constructive Possession

Constructive possession is when it's assumed that you were possessing an item based on it being within your control. For example, you're driving a car with a child in a front seat. The police pull you over and find drugs in the glove box. Since you're the only adult in the car with the ability to get drugs and put them in the car, the police might charge you based on constructive possession. If there are two adults in the car and the police find drugs under a seat, the police might say the person sitting in that seat constructively possessed the drugs.

Constructive possession is easier to question than active possession because it's easier to argue you didn't know about the item or put it there. Maybe you were borrowing the car or had just gotten in as a passenger and didn't search the car to see if there were any weapons or drugs because searching a car isn't a normal thing to do. The police and prosecutor have to prove facts connecting you to the object, so the less connection you have, or the more people there are that could have put it there, the harder it is to convict you.

What Is the Other Tenth of the Law?

If possession is nine tenths of the law, the other tenth is constitutional arguments, but your constitutional rights are really worth more than a tenth. In many cases, arguing that your rights were violated is the best approach because it means the charges have to be dropped before trial.

The rule on constitutional violations is simple. If the police find evidence as a result of a constitutional violation, any evidence that they found is almost always inadmissible in court. For example, if the police illegally search you and find an illegal gun, the gun likely isn't admissible due to a Fourth Amendment violation. If the prosecution can't use the gun as evidence, they can't prove that you possessed the gun.

While the police are supposed to uphold your rights, constitutional rights violations are fairly common. For example, the police might post up in a certain area looking for any excuse to stop and search people. These searches will often not have sufficient cause to be considered legal. Another example is a situation where your consent to a search wasn't valid because you thought the police were giving you an order you couldn't refuse rather than asking you for consent.

There are also many accidental violations. Even if the police got a warrant before searching, they might have made an error during the process to get it that the judge missed. Even evidence obtained with a warrant could be unlawfully obtained and not admissible in court.

Get Advice From an Experienced Criminal Defense Attorney

When you've been charged with possession or other crimes, it's always a good idea to get advice from an experienced criminal defense attorney. You may have defenses based on both the facts of your case and the law, depending on exactly what happened. Contact us now online or by phone to schedule a free consultation.


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