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WHAT IS POSSESSION, ANYWAY?

Many things are illegal to possess in California. For example, it is illegal to possess a controlled substance such as methamphetamine (Health and Safety Code section 11377) or paraphernalia for ingesting drugs (Health and Safety Code section 11364). It is illegal for some people, including felons, to possess a firearm or ammunition (Penal Code sections 29800 and 30305).

But what does the law mean by “possession”? I have had many clients arrested and charged with possession when there was no evidence they ever touched the forbidden item. A typical example is someone who lives in or happens to be in a house that’s searched by police when an illegal item is found. Even without any direct evidence that the person ever touched the item, even when it’s found in a different person’s room, the police can make the accusation.

Another typical example is when the police stop a car with multiple passengers and one is found to be in possession of something illegal. Sometimes everyone in the car gets charged.

Many people also believe that they can simply decide to “take” the item, and then they speak out and tell the police “that’s my gun” or “that’s my dope”. This usually doesn’t keep the other person from being charged, but it sure makes the case easier against the person who speaks up.

Here are a few things you should remember about the principle of possession in California as it pertains to illegal items:

- You don’t have to have something in your hands or on your person to “possess” it

- You don’t have to own something to “possess” it

- More than one person can “possess” something at the same time – even if one person actually has it in his or her hands

- You can’t decide for the police whom they will accuse of possessing something – so you’re better off not saying anything even if you later wish to help your co-defendant by admitting that something was yours. Let your lawyer help you decide if and when to make a statement that incriminates you.

- If you are with someone who has something illegal with him or her, you may be accused of jointly possessing the item. Be careful who you hang out with.

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