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56.3 Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession

    56.3.1 Temporary Or Momentary Possession

    56.3.1.1 Momentary Possession: Possession Insufficient To Establish Dominion And Control
    56.3.1.2 Momentary Possession: Defendant's Burden Of Proof Must Be Specified
    56.3.1.3 Defense Theory That Momentary Possession May Be Insufficient To Convict Even If For The Purpose Of Preventing Seizure By Law Enforcement
    56.3.1.4 Even If Defense Not Proven, Jury Must Still Consider Evidence Of Momentary Possession As To The Elements Of The Charge
    56.3.1.5 Momentary Possession Of Drugs Insufficient Without Evidence Of Assent To Transaction
    56.3.1.6 Innocent Intent Relevant Even If Not Required

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    56.3.1.1    Momentary Possession: Possession Insufficient To Establish Dominion And Control

RATIONALE: Momentary possession of contraband may not be sufficient to establish the dominion and control necessary to convict for criminal possession. Without appropriate explanatory instructions the jury may improperly assume that momentary or temporary possession is sufficient to convict.

POINTS AND AUTHORITIES: Depending on the jurisdiction, momentary possession may not constitute the dominion and control necessary to convict. (See e.g., People v. Mijares (CA 1971) 6 C3d 415 [99 CR 139]; see also Commonwealth v. Ramirez (MA 1990) 555 NE2d 208, 211 [carrying a firearm occurs when the defendant knowingly has more than momentary possession of a working firearm and moves it from one place to another].) Similarly, in Washington, the passing control or momentarily handling the drugs is not sufficient to establish dominion and control. (State v. Werry (WA 1972) 494 P2d 1002, 1007.)

    Because this theory of momentary possession is based on the lack of dominion and control, it is not required that the defendant intend to give the contraband to the police. (People v. Mijares, 6 C3d at 423 ["the possession prohibited by ... the code does not include merely handling for only brief moments prior to abandoning the narcotic"]; People v. Whitehead (NY 1986) 507 NYS2d 672 [defendant entitled to instruction on innocent possession where defendant took gun from New Year's celebrant and defendant was arrested before deciding what to do with the gun]; see also FORECITE National™ 56.3.1.3 [Defense Theory That Momentary Possession May Be Insufficient To Convict Even If For The Purpose Of Preventing Seizure By Law Enforcement].)

    Under such circumstances, courts recognize that, regardless of intent to dispose, to allow possession to be established by momentary contact "would give the act of touching an unwarranted talismanic effect." (U.S. v. Santore (2nd Cir. 1960) 290 F2d 51, 82 (en banc) (Friendly, J., concurring); United States v. Landry (7th Cir. 1958) 257 F2d 425, 431 [possession means "to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature"] [Internal citations and quotation marks omitted.]; U.S. v. Kitchen (7th Cir. 1995) 57 F3d 516, 523-25 [picking up drugs for a few seconds was not possession absent assent to the transaction]; Moreau v. State (AK 1978) 588 P2d 275, 285-86; but see Worthy v. U.S. (DC 1980) 420 A2d 1216, 1218 [in order to assert defense of innocent or momentary possession of weapon to charge of carrying concealed weapon, accused must show not only absence of criminal purpose but also that his possession was excused and justified as stemming from effort to aid and enhance social policy underlying law enforcement]; State v. Staley (WA 1994) 872 P2d 502, 507 [no right to instruction that momentary of fleeting possession is lawful because duration of handling is only one factor to be considered in determining whether control, and therefore possession has been established].)

    The Model Penal Code also provides a basis for arguing that momentary possession should not be criminalized: "Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." (Model Penal Code § 201(4).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

    To convict a person of unlawfully [carrying] [possessing] a [weapon] [__________ (other item)] the prosecution must prove beyond a reasonable doubt that the person [carried] [possessed] the [weapon] [__________ (other item)] for a criminal purpose.  A person does not [carry] [possess] a [weapon] [__________ (other item)] for a criminal purpose if he or she [intended to take it as soon and as directly as possible to law enforcement] [picked it up or obtained it to protect himself or herself or others from immediate harm and held it only so long as was necessary to protect against that harm].

    If you have a reasonable doubt that the accused [carried] [possessed] a [weapon] [__________ (other item)] for a criminal purpose you must give [him] [her] the benefit of that doubt and find [him] [her] not guilty.

[See People v. Whitehead (NY 1986) 507 NYS2d 672; United States v. Landry (7th Cir. 1958) 257 F2d 425; see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.71(B) [Carrying A Concealed Weapon Or Pistol Without A License- Defense] (Bar Association of the District of Columbia, 4th ed. 1993).]

    Passing control which is not unlawful includes only such a period of time as is reasonably necessary for the possessor to learn of the nature of the substance and to make a disposition of it.

[See Adams v. State (AK 1985) 706 P2d 1183, 1185; see also Jordan v. State (AK 1991) 819 P2d 39, 42.]

    Under certain circumstances, possession of a weapon which is in fact "temporary" may be "lawful."

    [For example, a person who "finds" a weapon and thereafter possesses it only "temporarily" is not guilty of unlawful possession.]

    [For example, a person who takes a weapon away from another person whom he or she reasonably believes may use it [to cause injury to another person] [unlawfully] and thereafter possesses it "temporarily" is not guilty of possession.]

    The prosecution has the burden of proving beyond a reasonable doubt that the possession of the weapon by the defendant was "unlawful." Therefore, the prosecution must prove beyond a reasonable doubt that the accused did not possess the weapon temporarily and lawfully. 

[See People v. Whitehead (NY 1986) 507 NYS2d 672; see also CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 9.65 [Possession Of Weapon (Temporary Possession Of Lawful Purpose)] (New York Office of Court Administration, 1983).]

NOTE: The above instruction can be modified to include drugs by changing the word weapon to drugs or controlled substance.

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PRACTICE NOTE: The prosecution is obligated to prove that the defendant’s possession was unlawful and, hence, must disprove the defense of temporary lawful possession beyond a reasonable doubt. (See People v. Montgomery (NY 1984) 482 NYS2d 331, 332; People v. Figueroa (NY 1981) 436 NYS2d 1, 2.)

    This view is also supported by the California Supreme Court which has held that "the possession prohibited by ... the code does not include merely handling for only brief moments prior to abandoning the narcotic." (People v. Mijares (CA 1971) 6 C3d 415, 423 [99 CR 139].) In so holding, the court did not impose any burden of proof on the defendant. To the contrary, the court made clear that the momentary handling of contraband for the purpose of disposal simply does not constitute possession within the meaning of the statutes proscribing possession of contraband. (Id., at 419-420; accord, People v. Cole (CA 1988) 202 CA3d 1439, 1445 [249 CR 601].) Thus, where there is only momentary handling, the prosecution's case fails for insufficiency of the evidence. (But see People v. Spry (CA 1997) 58 CA4th 1345, 1369 [68 CR2d 691].)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It has been suggested that momentary possession is unlawful if it is "for the purpose of preventing ... imminent seizure by law enforcement." (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 12.06 [Possession–Not Unlawful] (West, 6th Ed. 1996).) However, the cases do not support this proposition.

    It is true that if the defendant disposed of the substance for the purposes of avoiding its seizure by law enforcement, it could be inferred that the defendant at one time exercised physical dominion over the substance. (People v. Mijares (CA 1971) 6 C3d 415, 422 [99 CR 139]; see also People v. Sonleitner (CA 1986) 183 CA3d 364, 370 [228 CR 96]; People v. Rand (CA 1972) 23 CA3d 579, 584 [100 CR 473].) However, the fact that such an inference could be made by the trier of fact, does not mean such an inference must be made. Depending on the evidence, the jury certainly would be permitted to infer that the defendant did not previously possess the substance and that his disposal of it was to protect that codefendant from prosecution. Under the logic of Mijares, the defendant in such a case would be guilty of the destruction or concealment of evidence but not possession of the substance. (See Mijares, 6 C3d at 422.)

    Hence, the suggestion that the defendant is always guilty of possession when the momentary possession was to avoid seizure by law enforcement is erroneous and should be deleted from an instruction on momentary possession. Rather, such a factor should be considered by the jury in determining whether to infer that the defendant exercised dominion over the substance at a prior time. (See e.g., People v. Whitehead (NY 1986) 507 NYS2d 672 [defendant entitled to instruction on innocent possession where defendant took gun from New Year's celebrant and defendant was arrested before deciding what to do with the gun]; FORECITE National™ 56.3.3.1 [Possession: Justification Or Necessity As Defense].)

    Moreover, in Mijares, the court stated the rule that "the possession prohibited by . . . the code does not include merely handling for only brief moments prior to abandoning the narcotic." (Id., 6 C3d at 423.) In support of this rule, the court favorably cited the earlier case of Jennings v. Superior Court (CA 1967) 66 C2d 867 [59 CR 440]. There, a defendant ran and abandoned a narcotics kit as the police approached him. (Jennings, supra, 66 C2d at 871.) Obviously, by citing Jennings as a case where the momentary possession defense was applicable, the Supreme Court has indicated that concealing contraband from the police does not ipso facto preclude use of the momentary possession defense. (Mijares, supra, 6 C3d at 421 [categorizing Jennings as a case where "[w]e granted a writ directing the magistrate to permit defendant, as a defense to possession, to introduce evidence concerning the fleeting purpose of his taking the narcotics outfit and casting it over the fence"].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: Even if the evidence of momentary possession is not sufficient to affirmatively prove the defense, the jury must still consider that same evidence in deciding whether the prosecution has met its burden to prove all elements of the charge.

POINTS AND AUTHORITIES: If momentary possession is treated as an affirmative defense as to which the defendant has the burden of proof  the instructions should not confuse this defense with the prosecution's underlying burden to prove possession beyond a reasonable doubt. (See FORECITE National™ 250.5.2 [Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements].)

FEDERALIZATION: To federalize this request, click here. [Macro 2.3; 4.5].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

a. Even if the defendant does not prove momentary possession, the prosecution must still prove every element of the charge beyond a reasonable doubt.

    b. In deciding whether the prosecution has met its burden to prove every element beyond a reasonable doubt, you must consider all the evidence, including that which relates to the defense of momentary possession, even if you conclude that the defendant did not prove that defense.

SAMPLE INSTRUCTION: ALTERNATIVE 2:

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    56.3.1.5    Momentary Possession Of Drugs Insufficient Without Evidence Of Assent To Transaction                                 

PRACTICE NOTE: U.S. v. Kitchen (7th Cir. 1995) 57 F3d 516, 523-25 held that even though the defendant picked up the drugs for a few seconds during a "reverse buy," such momentary possession is insufficient to convict for a possessory offense absent unequivocal conduct showing assent to the transaction. (See also People v. Mijares (CA 1971) 6 C3d 415, 422 [99 CR 139].)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 56.3.2.3 [Innocent Intent Relevant Even If Not Required].