What are the Three Types of Possession?

The three types of possession are close proximity, exclusive possession, and actual knowledge. In court, the state must prove all three types of possession beyond any reasonable doubt in matters like illegal weapons, drug, and pornography possession. When they make illegal possession arrests, many officers only focus on the first type of possession. As a result, prosecutors often have issues proving the other two types of possession.

If a Leesburg criminal defense lawyer creates a reasonable doubt as to any part of the evidence, the defendant is not guilty as a matter of law. Attorneys often use weak evidence as a bargaining chip during pretrial settlement negotiations. Illegal possession cases often have other defenses as well, such as procedural (Fifth Amendment violations) and affirmative (coercion, entrapment) defenses as well.

Close Proximity

In many ways, the first type of possession involves procedural issues, mostly because this type of possession is actually two types.

Closer proximity between the defendant and the item is often easy to establish, especially in vehicle possession cases. Under Virginia law, any item in the passenger area, which includes a pickup truck’s bed and car’s trunk, is in close proximity to any person in the passenger area.

However, a Leesburg criminal defense lawyer often successfully challenges the second type of close proximity possession, which is close proximity between the peace officer and the seized item.

Law enforcement detentions are only legal if the peace officer had reasonable suspicion (an evidence-based hunch) to detain the suspect. The easiest way to explain what reasonable suspicion is, since it’s such a low standard of evidence, is to examine what reasonable suspicion is not.

A mere hunch is not reasonable suspicion. If the defendant doesn’t “look right,” such as a black person traveling in a mostly white neighborhood, the stop is illegal.

Furthermore, furtive movements, such as nervous glances into a rear view mirror, don’t constitute reasonable suspicion. However, they could be evidence supporting probable cause, which is the standard of evidence necessary for arrests.

Exclusive Possession

This principle is usually a real estate law concept. Exclusive possession means the legal right to control and use property to the exclusion of all others, including the owner, with the exception of those with legitimate rights, such as a tenant’s landlord. In essence, it’s the right to “shut out the world” and assert total control over property access.

This type of possession is an issue in disturbance call possession cases. For example, if officers respond to a noise complaint and find marijuana at a party, they’ll most likely arrest everyone who was in the house at the time, especially if no one immediately steps up and says “That’s mine.”

Passing a joint in a circle is another example. Dave might have momentary possession of the joint, but he doesn’t have exclusive possession of it.

Actual Knowledge

This type of possession is the legal cousin to exclusive possession. The 2016 saga of basketball player Britney Griner illustrates how it works.

Russian authorities arrested Griner at an airport when they found marijuana vape cartridges in her luggage. Griner claimed someone else packed her bags and she didn’t know they were there.

Her defense, which may seem far-fetched, probably would’ve at least created a reasonable doubt in a Virginia court, Her defense would be even stronger if the third party who packed the bag testified that s/he didn’t tell Griner about the cartridges or that s/he told Griner no such items were in her bags.

Work With a Diligent Loudoun County Lawyer

There’s a big difference between an arrest and a conviction in criminal law. For a confidential consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. The sooner you reach out to us, the sooner we start working for you.