Ponderings on Possession.

Mark Draughn’s “Windypundit” blog is one of my regular reads. He’s somehow found the magic ability to post both frequent and frequently interesting new thoughts.  Today he posted an interesting hypothetical regarding possession of contraband:

To make it more concrete, suppose I’m walking down the street, minding my own business, when a stranger confronts me, thrusts a duffle bag into my hands, and runs away. When I open a duffle bag, I find a tightly wrapped kilo of cocaine, a pile of child pornography, and a MAC-10 submachinegun. As I look up, I notice several police officers coming down the street, obviously searching for someone or something. They haven’t noticed me yet. What should I do next?

Well, then. What do you do?

From a strictly legal standpoint, you need to drop all that stuff immediately. Possession of illegal stuff  typically has to be “knowing” to stick in court. Holding that bag in those circumstances for a short time not knowing what’s in it is one thing- you’re not knowingly possessing something you shouldn’t.  Once you see child porn, something you believe are drugs, and an illegal firearm the “knowing” element is shot.

You can cure that, though, by not possessing it.  Legally speaking, you don’t take it anywhere to get rid of it and you don’t call somebody while you’re holding it. You cease possessing it immediately.  Then you get the hell away from there, because even if you dropped the bag (but you’re still standing right next to it) there’s a great argument that you’re constructively possessing it.

Constructive possession means, of course that you don’t poses something but you’re still screwed.  Although, you might be fine on the child pornography charge (depending on the form) as Illinois law actually has the involuntary possession of child pornography specifically addressed:

(5) The charge of child pornography does not apply to a person who does not voluntarily possess a film, videotape, or visual reproduction or depiction by computer in which child pornography is depicted. Possession is voluntary if the defendant knowingly procures or receives a film, videotape, or visual reproduction or depiction for a sufficient time to be able to terminate his or her possession.720 ILCS 5/11-20.1(b)(5)

So you dropped the bag and you’re across the street or at least quickly moving away. You’re good to go, right?

Well, maybe. That’s probably your best bet from a strictly legal-perspective. Sadly the law doesn’t happen in a “strictly-legal” perspective.

So, then what do you do?

You’re out on the street with a duffle bag filled with guns, coke and child porn. Depending what the surfaces on the bag or the items in the bag, your fingerprints might be on there. There are cops running at you who haven’t seen you yet, but just might if you do something out of the ordinary (like drop a duffel bag and run across the street).

Assuming that’s how it does go down, dropping a bag full of contraband in front of the cops and possibly having your fingerprints on the contraband inside is what prosecutors call a very strong circumstantial case. Prosecutors are going to put that evidence to a jury, then sit down and start eating Cheetos.  Your lawyer is going to be nervous the whole trial.

Sure, some thugs just dropped out of nowhere, shoved this thing in your hands and took off. You didn’t want that bag and you got away from it as soon as you could. That all happened for real.

No jury in the world is going to believe it, either. Unless, of course, you can somehow produce proof of that.  It’s possible a camera somewhere caught it all. It’s also possible that none did. Either way, you wouldn’t know that while you were standing there.

Seriously. What do you do?

So, what should you do in light of that? It’s hard to say, really. If a client asked me that, I’d say that legally speaking you should drop that bag immediately where it is and get the hell away from it. You could tell the cops about it if you wanted, but didn’t have to. On the other hand calmly walking the bag elsewhere and dropping it there might keep you from alerting the ensuing police.  Once it’s safe you can drop the bag and get away from it.

Your fingerprints still might be on that stuff and there still might be a strong circumstantial case against you if the police later find the items, though.  So, while it’s certainly not the “right” thing to do legally and it may not be the right thing to do ethically, the smartest thing to do might actually be to calmly walk away so as to not attract police attention, then pitch that bag in the trash somewhere.

But this would never really happen, right?

The duffle bag hypothetical was Draughn’s “every day” spin on a real world conundrum that a treating physician found himself in.  Draughn’s hypothetical is loosely based on a New York Times piece where Doctor Sandeep Jauhar found himself in an interesting situation and did, effectively what I just described:

I once took care of a business executive in the emergency room who had hired call girls during a weekend drug binge. When he saw a police officer outside his room, he quietly handed me an envelope containing a large amount of white powder. I wasn’t sure what to do with it, so I discarded it. For the next several hours the patient eyed me suspiciously, probably wondering whether I had ratted him out. But it never occurred to me to do so.

Based on this Draughn asks what the Doctor should have done. He points to criticism from a Northwestern University Law Professor that:

Hiding evidence of a crime isn’t confidentiality; it’s obstruction of justice. There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.

In typical law professor style we’re made keenly aware of what’s wrong without any practical solution to the problem.

Although, in his case, Jauhar could have done something else and not drawn as sharp criticism.

What’s the policy for handling of any of the personal effects of a patient at a hospital? Patients every day enter a hospital in an emergency fashion with jewellery, a purse or wallet, or important documents. The hospital collects that stuff, and puts it into a safe or some sort of storage.  Juahar could have placed the item in a bag, stapled it shut and put it with the rest of the patient’s belongings- whether in a safe or not.

In that situation there’s no hiding and there’s certainly no destruction.  He’s not possessing it, either. He’s also not betrayed any patient confidences. He’s doing what is always done. If the police ask the Doctor about it, he can tell them what he did with it and where it went.

Again, the smartest thing to do certainly may not jive with competing legal, moral and ethical interests.  That’s not Juahar’s fault, though.  Possession crimes can and do put regular people in sticky situations all the time. Which is why Draughn is using these scenarios to ultimately support a simple point:

The basic problem I’m having with this whole scenario is that mere possession of contraband is inherently a victimless crime that harms no one. That’s not just my opinion, it’s physics.

It’s hard to argue with physics.

Author: matthaiduk

Matt Haiduk is a criminal defense lawyer in Illinois. He loves his dog. And pizza.

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