From a case here in Illinois - suppose two guys rob a guy of his marijuana, take his money, and shoot him. Suppose he lives and the cops are able to catch the bad guys. They charge the guys with robbery and attempted murder. Can the victim be charged with possession? Clearly, if he was robbed of it, he at one time possessed it. How does this work?
Well, if a bank robber makes it out of the bank, he’s still easy to charge…
Wikipedia says, “A person has possession of drugs if he or she has actual physical control of the drugs (they have the drugs in their hands) or if the drugs are on that person.” That means that if a person is robbed of drugs, he no longer possesses them. But clearly, if he was robbed of them, he must have possessed them. If I sign a note to buy a car, don’t I possess that car? Even if I haven’t entered it?
I would think the issue would be standard of proof and chain of custody. I think it might be tough to get a conviction on, given the circumstances of the hypothetical.
That ^.
The police would be going on the word of robber/murder types that say “we got the weed from that guy we tried to kill”. About a snowballs chance in hell of a charge like that sticking.
Don’t be surprised if the victim says something like “I was just minding my own business, smoking a joint, when these two thugs pointed a gun at me and demanded my weed. I gave it to them, but they shot me anyway.”
As to the title question “Can a person be charged with possession if the material is no longer in his possession?”: If the cops find someone in possession of contraband, they will take it away from them before filing charges. You don’t have to let the offender hold on to the drugs or the guns or whatever until after you file formal charges.
And, no, like any other crime, the police don’t actually have to see you commit the crime in order to charge and convict you. If they have the necessary evidence to convince a judge and jury, they can still convict you even though you threw the body in the river before they even knew the victim was dead.
They did charge the guys with robbery. Doesn’t that obviate the issue of chain of custody? And doesn’t that mean that the robbee must have possessed the contraband prior to the robbery? That’s the quibble I have. If the police say A took something from B, then they’re also saying that B possessed it prior to the taking.
The police are going to want the testimony of the victim of the robbery/attempted murder. Unless it’s a huge amount of weed, I would expect they would reach an agreement not to charge, in exchange for his testimony.
In practice, around here, they normally only charge you with possession if they find you in possession.
And to make that work, they will convict you of possession if they can find a measurable trace. What I, in my non-legal way, would call “evidence of past possession”, 0.05 grams in the case I was watching – which is a very small amount of possession.
I was arrested and charged with DUI drugs even though there was no physical evidence. The case was later dropped without trial after negative results of the post-arrest blood test.
Certainly. If the criminal act consists of the possession of a certain material, then this criminal act does not get undone even if possession has ceased in the meantime. More generally, a crime committed in the past is still a crime even if it is not committed any more. Proving it might be more difficult than if the material was found on the person charged, but if it´s possible to prove that the accused had possession of the material in the past, then a conviction would certainly be possible, and I doubt many prosectors would drop such charges simply because it´s not in the accused´s possession any more.
I just served on a jury a couple of weeks ago.
The judge and the lawyers all explained that there were two different types of possession involved in the case that we were deciding. The first type is the obvious type. You’re carrying the doobie, it’s yours (actually, the lawyer used the example of his pen, but you get the idea).
The second type of possession is when you are in control of something but you don’t actually have it on your person. The example the lawyer gave was that there is a notepad in his office, sitting on his desk. That is clearly his notepad. He has control over it, but it’s not on his person at the moment since he’s in the courtroom and the notepad is in his office. In our case, the item in question was a handgun, not drugs.
IANAL, and I have no idea what the laws are in your state, but it seems to me that the second type of possession might apply in your hypothetical case.
Yes you can be charged with a crime you committed in the past. Especially if you admit that you did it.
In that situation, I wouldn’t be at all surprised if the cops charged the victim with possession of marijuana and used the victim’s statement as a confession. A brave lawyer might argue that it’s inadmissible because the victim hadn’t been Mirandized but Miranda doesn’t apply to spontaneous confessions. If you walk up to a cop who’s wearing a body camera and say “I just robbed a liquor store”, that’s admissible. The cop will arrest you and THEN inform you of your Miranda rights. IANAL.
Maybe I should rephrase the question. Does having been robbed of contraband ipso facto mean that you had been in possession of contraband and were therefore susceptible to being charged with possession?
I guess if the cops can prove the marijuana belong to the victim they will charge him. I would hope the victim would not to that dumb to tell the cops his marijuana
was stolen too.
Furthermore, around here they do NOT charge OD’d junkies with possesion. Even though it is absolutely clear that if you OD’d on opiates, you “possesed” opiates.
It is a message that they try to get out, because they want the friends of OD’d junkies to call an ambulance before it is too late.
Actually, you are robbed of something that you own. Quite possibly you can own something without “possessing” it. So the mere fact that somebody else has been convicted of robbing X from you does not mean that you are guilty of the crime of possessing X.
Of course, in the course of investigating the robbery the police may very weel find evidence showing that you were in possession of X. If so, they can charge you with possession of X. The fact that you were robbed of X is not necessarily something that would come up at your trial for possession of X, except incidentally. The relevant evidence is the evidences showing that you possessed it, not that you were robbed of it.
Generally, possession means possession. There’s a whole case law about "but what if Fred tossed the baggie on Joe’s lap just as the cops break down the door. (If it just landed on him, he didn’t really have possession unless he acted like it was his).
But possession means possession. There has to be drugs, they have to test as drugs, not oregano. (It’s a crime to pretend the oregano is pot and try to sell it, but not to possess it.) The problem is “beyond reasonable doubt”. The only people who saw you with the stash are two crooks, not reliable witnesses. The police have only their word that what they handed over, what tested positive as drugs, was initially in possession of the victim. These are not reliable witnesses, they have plenty of reasons to lie - they could be plea bargaining, they could have gotten the goods elsewhere and prefer not to tell the true story,etc. The longer between them taking possession and the cops taking possession, the more opportunities for fabrication. So generally, unless the witness is extremely reliable, the police will need physical possession to charge you.
As noted above, if they find the stuff in your normal place of abode, even if you are not there, the rule is “possession”. Then the onus would be on you to present a plausible case that “someone else was visiting and planted it.” Or if you tell the undercover guy “dig under 3rd base in the Elm St. park”…
OTOH, if you mother finds your stash and calls the cops immediately and hands it over, she may be a reliable witness. (Happened to the husband of my wife’s friend. He was underage, so the only consequence… 15 years later, he’s taking his young family to Disneyworld, and the US border service stops him, bars him from entry due to a prior drug conviction.)