Possession

MPC 2.01(4): "Possession is an act … 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."

United States v. Maldonado [23 F.3d 4; 1994 1st Circuit Ct. of Appeals] (p. 115)

• Facts: Santos, working with the police who were trying to track the drugs to their
destination, was given packages of cocaine, and was instructed to deliver them to
someone named Palestino. When he went to the hotel and asked for Palestino, Zavala
(Maldonado) appeared and gestured to Santos to follow him to the hotel room. Zavala
them placed several calls, supposedly to Palestino to have him come to the hotel.
Palestino still didn’t arrive, and Santos asked if they could leave the room for a soda.
Then Santos placed the cocaine in the room, in a closet or dresser, and they both left. The
police finally arrested Zavala and he was convicted of possession of cocaine with intent
to distribute. Zavala appealed, arguing that there was insufficient evidence to prove he
was in possession. There was no evidence he ever touched the cocaine, or even saw the
cocaine in the bag, that he was ever in the room alone with the cocaine, or that he ever
had a practical opportunity to remove it from the room.

• Discussion & Holding: possession includes not only immediate physical possession, but
also constructive possession, and joint as well as exclusive possession. Constructive
possession is defined as "the power and intention to exercise control, or dominion and
control, over an object not in one's "actual" possession. So, you can be in possession of
something hidden somewhere in your house, or held by someone else. So because the
drugs were left in Zavala's room, while he was waiting for Palestino to come pay for
them and with Zavala's consent and knowledge, the Court held that they were in his
possession. Also, just because the hotel room was under Palestino's name, Zavala was
still occupying it, and could easily return there at will.

• Notes:
o The elements of constructive possession: (1) effective power over the thing
possessed, and (2) the intention to control it.
o Dissent in Maldonado: he argues that Zavala had not yet acquired authority over
the drugs. He did not have a recognized authority, within the criminal group, to
possess the drugs, only to contact Palestino to come pay for them. Zavala was not
the intended recipient, the drugs had not been paid for, and Santos' refusal to
transfer the drugs to another room, all show that Zavala did not have any claims
on the drugs.
• Class Notes:
o When they leave the cocaine in the room, the cocaine then becomes in possession
of both Zavala and Santos (both now have joint power to gain control over the
drugs), b/c both have the ability to go back to the room to take it into physical
possession, and more so Zavala, since he's the one occupying the room.
o Constructive possession - power and intent to exercise an act