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What Does It Mean To Knowingly Possess?

The Cannabis Control Act states, “It is unlawful for any person to knowingly possess cannabis” (720 ILCS 550/4).

The Illinois Controlled Substances Act states, “Except as otherwise stated by this act, it is unlawful for any person to knowingly possess a controlled or counterfeit substance or controlled substance analog” (720 ILCS 570/402).

Pertaining to guns and other weapons, the law states that “a person commits the offense of aggravated unlawful use of a weapon when he or she knowingly…” (goes on to state all of the actions which fall under this statute) (720 ILCS 5/24-1.6).

The Illinois Controlled Substance Act, Cannabis Control Act, and Act 5 Criminal Code of 2012 all have something in common, they require the defendant to knowingly possess the substance or item.

What does it mean to possess something knowingly? There have been many controversies over the definition of knowledge in past years in the courts. In 2010, Illinois established what they recognize to be a definition of knowledge under the Criminal Offenses Act.

“The nature or attendant circumstances of his or her conduct, described by the statute defining the offense, when he or she is consciously aware that his or her conduct is of that nature or that those circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that the facts exist” (720 ILCS 5/4-5).

In short, this means that the circumstances of a particular case can result in a person being deemed to be aware that he/she is in possession of any unlawful substance, or is probably. This is a lower standard than having a subjective intent to be in possession. The good part is that these are fact questions which are left to the jury to decide. As we will see, sometimes seemingly incriminating facts have an innocent explanation.

When you are charged with the possession, it is the States job to prove you knowingly or intentionally possessed that item. “Not only is it the State’s job to prove you knowingly possessed the cannabis, but they also must prove that you understood, or knew, the material was an illegal, controlled substance “(U.S. v. Covarrubias, 65 F. 3d 1362 (1995)). In U.S. v. Covarrubias the district court stated a way which knowledge may be inferred or assumed :

You may infer someone has knowledge of something from a combination of feeling or thoughts that something is likely or true, and a lack of interest or concern in the truth (U.S. v. Covarrubias, 65 F. 3d 1362 (1995)).

Listed below are several examples where the fact of knowingly possessing has played a large roll in the decisions of cases.

In People v. Wright, Daniel Wright was convicted of aggravated, unlawful use of a weapon in the Circuit Court of Cook County. He appealed, and the Appellate Court found that the State had failed to prove he knowingly possessed the weapon which was attributed to him, so the decision of the Circuit Court of Cook County was reversed. In this case, the defendant and another man fell down a flight of stairs at a residence that the defendant did not reside at and when he was found, he was laying near a gun. The State failed to present any evidence that he knowingly possessed this weapon, as there was no physical evidence which tied him to the gun, and he made no movement suggesting he was attempting to discard a gun. For these reasons, there was lack of evidence that proved him guilty beyond a reasonable doubt, and the State did not prove he knowingly possessed the weapon even though it was near him. Therefore, his conviction was reversed (People v. Wright, 2013 IL App (1st) 111803 (2013)).

United States v. Stribling is a sufficient example of how inferences or assumptions can be used to prove you knowingly possess. Yvonne Stribling was stopped by an Illinois State Trooper after making several traffic violations. After being stopped, the Trooper found 15 kilograms of cocaine in the car. In this case, the jury attributed Stribling’s nervousness and lies to the police, along with the contradictory nature of her testimony and actions, as reasons to infer that she was aware that the cocaine was in the car. This case shows that inferences, including conduct which the State may argue as showing consciousness of guilt, is a way the State can use to try to prove one knowingly possessed a substance or item (U.S. v. Stribling, 94 F. 3d 321 (1996)).

Lastly, we look at how even highly incriminating facts sometimes have an innocent explanation when a person is defended by an effective Illinois trial lawyer. In People v. Yeary, Kyle J. Worby, Gullberg & Box LLC represented the defendant in this trial. The defendant was charged with possession of a controlled substance and possession of drug paraphernalia after being pulled over for running a stop sign. During the stop, the officer discovered a vial which contained a small amount of cocaine. The vial was located under a tray in the center console of the defendant’s vehicle. At trial, the defendant testified that he had allowed two friends, who were drug users, to drive his car on several occassions prior to his arrest, and that he was unaware of the things they left in the car. He explained that he had seen his friends use vials, similar to the one found in his car, before. He also testified that he previously drove a semi for a living, and that he had to submit to random drug testing approximately ten times between May 29, 2012 and September 2, 2013, and that all of the tests were negative. Attorney Worby argued there was not sufficient evidence to find beyond a reasonable doubt that the defendant knew the cocaine was in his car. The jury agreed, finding the defendant not guilty on both counts.

As we have seen, whether someone is knowingly in possession of an illegal substance is highly fact determinative. Effective Illinois trial lawyers must leave no stone unturned in ferreting out potentially exonerating facts and, just as importantly, be able to make effective argument about those facts to the jury.