What Is Possession?

Here's a hypothetical based on a case of mine:

The police have an arrest warrant for Person A. They are able to trace him to a residence by phone calls he made from inside. The police assemble a small task force to go and apprehend Person A.

Person A is staying with his cousin. He has for about two weeks but isn't getting mail there. Her boyfriend, Person B, also lives there. Person A and Person B are both on parole, thus both are technically in violation of parole since they are both felons and are not allowed to reside together while on parole. Legally, only Person B resides at this residence. Person A is more of a guest.

The police arrive. They knock on the door and announce their office. Person A has a pistol. The cops know he likely has one. Person A panics. He heads for a window. Before he opens it, he throws his pistol on the kitchen floor. His cousin, the leaseholder, tells her boyfriend, Person B, to get rid of the gun. After all cops are about to bust down the door.

Person A hops out the window and is immediately arrested. Person B picks up the pistol and throws it in the oven. The cops are let in. They find the handgun. Person B and his girlfriend tell the same story. It's the version you just read. Person A, however, says the pistol belonged to Person B.

Both Person A and Person B are arrested and indicted for possessing the handgun. You might ask, how two people can be charged for possessing the same thing. I asked myself the same question. I was hired to represent Person B. He was immediately violated and sent back to prison where he remained for about 4 months until his parole was over. After that, he was sent back to the county jail.

His girlfriend hired me. They later got into a fight. She stopped paying me. What do I do with this case?

It's a great case in front of this judge. The state knows it. As charged it was a minimum 3 years. I filed a motion to suppress and later withdrew it. The issue wasn't the arrest, it was that he was even charged after the fact. And if I attempt to suppress the gun it's not going to fly. A defendant has to have a possessory interest in something in order to suppress it. In other words, you can't suppress something that's not yours.

The police were in the residence lawfully. They were granted consent to search. Though on the surface it appeared there was a legal issue, it was really just one of fact. Did Person B actually possess the gun for purposes of the statute? I felt he didn't. I think the judge would have agreed with me....but....

I decided to try the case anyway. It would take an hour at most. The State finally flinched. At my suggestion, they offered to reduce the charge so that a 1 year sentence could be given. My client had in enough county time that this sentence means nothing. He would what we call "dress in and dress out." In other words, he would walk into prison and shortly after walk out on parole.

The State made the offer. I relayed it. He took. He will be on parole before his case ever got to trial. And at trial....he could lose. Winners all around? I don't know. The State got a conviction. I got out of a trial I wouldn't be paid for. But what about the client? Did he win? That depends on your view.

Obviously another felony didn't mean anything to him. At this point he's already been locked up over this for 7 months. What's a few more weeks? Or at most a couple of months? He jumped at the offer and then thanked me up and down for sort of getting him out of this jam.

When taking his plea, the judge (a substitute) was told about his felony background. She remarked that he was getting an awesome deal that his attorney worked hard to get. I am standing next to him not thinking about my handling of the case. Instead, I was thinking about yet another client who just lost a year of freedom over a ridiculous case.

And the thing about this case is that it sailed through the grand jury. This case took less than 15 minutes to indict. Walking out of the courtroom I couldn't help but hope I never have to plead guilty to something I am not guilty of simply because the risk of maintaining my innocence could mean more prison time.

Was this case a winner at trial? I think so. If so, why did he take the deal? My own speculation is that the outcome was determinate. 1 year in prison. Trial risk was 3-7 years, plus a higher grade felony that could have really stung in the future. And also the fact that he will be home sooner than his trial would have been scheduled to begin. Trials rarely proceed the first time they are set. In theory, and based on my practice, he could have sat in county until May or June before he got his day in court.

There's just something not right about this.

www.schantz-law.com

Twitter