We’re all familiar with the phrase “possession is nine-tenths of the law,” but what does that mean legally? In truth, the phrase doesn’t have any legal standing, but thinking about it can highlight some of the legal issues surrounding different types of criminal possession.
Where Does the Phrase Come from?
The phrase, like many colloquialisms about the law, doesn’t come originally from law, even common law. It is likely from a piece of common Scottish wisdom, “Possession is eleven points in the law, and they say there are but twelve,” which is recorded in an otherwise unremarkable 1697 play by Colley Cibber, Woman’s Wit. By the 19th century, the phrase took on what we consider its modern form.
As a legal concept, the phrase might derive from the Roman legal practice of uti possidetis, which dates from at least 169 BC. When there was a dispute over real property, such as a house or parcel of land, Roman praetors (magistrates) would tend to award ownership to the one who was in actual possession of the land, unless there was evidence that it had been taken by force, trickery, or by loan from the other party. For moveable property, praetors used a similar interdiction: utrubi. Both of these are considered temporary judgments. The other party is ordered not to take the property by force, but the current possessor is not declared the true owner.
Modern Legal Definitions of Possession
Although legal concepts of possession and ownership take different forms, the law today defines several types of possession, with the two most important being actual possession and constructive possession.
Actual Possession
Actual possession is the common use of the word possession most of the time. This is when something is in your physical custody or physical possession. As the cliche suggests, if you have something in your actual possession, the assumption is that the item is your property unless there is evidence to the contrary.
This can work in your favor or your detriment. For example, it means you shouldn’t be randomly stopped for possession of stolen property, but if you have drugs in your possession, it’s hard to convince anyone that they are not your drugs.
Constructive Possession
Constructive possession is when you don’t have an item on your physical person, but you know where it is and can control what happens to it. A good example of this is when you put something in a safety deposit box in a bank. The bank has actual possession of the item, but they don’t have constructive possession—your deposit box key is required to get the contents of the box. They also may not know what is in the box, and knowledge of the item is an essential component of constructive possession—and criminal possession.
For both controlled substances and stolen goods, the law states that you can only be charged if you knowingly possess the illegal items.
Possession Concepts Applied in Colorado Criminal Law
When police discover a controlled substance on your person, in your car, or in your house, the assumption is that it is your property. Because you are in actual possession of the item, you are assumed to be in constructive possession as well. The assumption is also that you likely knew the controlled substance was illegal to possess.
For stolen property, the situation might be handled a little differently. Possession of stolen goods can be charged as theft, but law enforcement faces a significant challenge. Unlike controlled substances, there is nothing about a television or computer that makes it inherently obvious that it is stolen, although officers might question you about where you obtained the object or objects in question. Prosecutors would have to prove that you knew the property was stolen—or should have known—beyond a reasonable doubt, which can be a challenge.
Bottomline, possession is generally defined by the Colorado Jury Instructions as ‘the item‘ being in your presence and control. ‘The item‘ could be drugs, alcohol, or something another stole. Unfortunately, ‘the item‘ only needs to be near you to be charged in Colorado.
“Special Offenders” Under Colorado Law
Under Colorado law, drug offenses can get you labeled a “special offender” if they meet certain conditions. While the possession charge you are facing might carry a sentence of six months to a year, you might face eight to thirty-two years in prison if you are labeled a special offender. There are actually many ways to get labeled a special offender, including:
- You are manufacturing, selling, dispensing, or distributing the substance
- You were involved in a conspiracy to do any of the above
- Large quantities (say 7 grams of methamphetamine or heroin) were involved
- You had a deadly weapon on you
- There was a firearm in your vehicle or in the actual possession of a “confederate”
- You involved a minor child in an alleged drug operation
- The offense took place at or near a school or public housing development
- You have a previous conviction on a drug charge
- You supposedly derive a significant income from illegal drug operations
As you can see, it’s relatively easy to get labeled a special offender. If you had a pocket knife, for example, or if your friend had a legal firearm at the time the drugs were discovered. Sometimes law enforcement might go so far as to link you with someone nearby who had a gun. Even if you don’t know the person, officers might claim they are your confederate.
You might even be facing special offender status if drugs were discovered in your car after you were stopped for speeding in a school zone. In a situation like this, you need the help of someone who understands what constitutes a legal search of your vehicle and/or person.
Legal Strategies Involving Possession in Criminal Defense
If you are charged with possession of a controlled substance or stolen goods, your criminal defense attorney may consider different strategies to protect you. Some common strategies used in these defenses include:
- Having a valid prescription to possess the drugs
- Not knowing the drugs were in your possession
- Ignorance that the drugs were illegal
- Not knowing the items were stolen
- Lack of control over the items in question
- The drugs were planted on you
- The police violated your rights during their search
Which defense will work best depends on the exact circumstances of your situation. For example, if the controlled substance was found in your car and you recently loaned the car to a friend, you might be successful in arguing that you didn’t know they were there or that you didn’t have control over them. You are less likely to be successful with this argument if the controlled substance was found in your shirt pocket.
With possession of stolen goods, many people are falsely accused of stealing when they purchased stolen goods in good faith, not knowing they were stolen.
In some cases, you might be encouraged to take a plea deal in exchange for information about someone who sold you the controlled substance or stolen items. Public defenders often encourage this, but a criminal defense lawyer should encourage you to consider what effect the charges you accept in the deal will have on your career, reputation, and family.
The Value of Legal Advice for Dealing with Possession Charges
When you are facing charges for possession of drugs or stolen items, it’s important to get legal advice from someone who understands the significance of the charges you are facing and how they can affect your life. While you always have the right to a public defender, it might be worthwhile to talk to a law firm that is prepared to do what it takes to protect you from drug charges. Public defenders are often overworked, so they value legal strategies that resolve the problem quickly, like plea deals.
While plea deals can seem appealing, even accepting a lesser charge can upend your life. It’s important to talk to a criminal defense lawyer about the details of your case. Establishing an attorney-client relationship frees you to discuss all the important details without worrying that these details will be used against you. Talking to a criminal defense lawyer under these conditions can help you discover whether you might have been the victim of, for example, an illegal search.
Contact the Law Offices of M. Colin Bresee
When it comes to possession charges, “possession is nine-tenths of the law” can be an unhelpful and confusing saying. It’s more important to focus on the exact circumstances of your drug charges as well as the important points of law relevant to your case, including the constitutional right to due process and security in your person that protects against illegal searches.
At the Law Offices of M. Colin Bresee, we have protected many people from theft and drug charges, including possession charges. With the help of M. Colin Bresee, many of our clients have beaten drug charges or got lower sentences than they had been offered in plea deals. Contact our office for more information or legal assistance.
We offer a one-time free consultation and provide legal help to clients in:
- Arapahoe County, including Aurora, Centennial, Englewood, Greenwood Village, and Littleton
- Adams County, including Thornton and Westminster
- Denver County
- Douglas County, including Castle Rock, Highlands Ranch, and Parker
- El Paso County, including Colorado Springs and Security-Widefield
- Gilpin County, including Central City
- Jefferson County, including Arvada and Lakewood
- Weld County, including Greeley and Longmont
Disclaimer: Past results do not predict future performance. Neither this page nor any other on the website constitutes legal advice and does not establish a client-attorney relationship.
