Seventh Circuit Criminal Case of the Week: The Limits of Constructive Possession

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit

seventh circuitThe Seventh Circuit had only one new opinion in a criminal case last week, but, fortunately, it was an interesting one.  Under 18 U.S.C. § 922(g), it is a federal crime for felons to possess a firearm.  Proof of the crime is easy enough when a felon is found actually carrying a gun.  But what if the gun is nowhere on his person, but merely, say, in his home? 

In practice, the federal courts have interpreted the law expansively so as to encompass a broad range of circumstances beyond actual possession.  Thus, under the doctrine of “constructive possession,” a felon may indeed be convicted based on the discovery of a firearm in his home. 

But,  as the Seventh Circuit made clear last week in United States v. Katz (No. 08-2341), even the doctrine of constructive possession has its limits. 

Katz, a felon, had some sort of altercation with Grice, his girlfiend, at her home.  Responding to 911 calls, police arrived at the scene, detained Katz, and searched Grice’s home.  The search revealed, among other items of interest, drugs and a shotgun with Katz’s fingerprints on it.  At trial, Katz stipulated that he had been convicted of a felony prior to the incident at Grice’s home, and a jury subsequently found him guilty of being a felon in possession. 

On appeal, Katz argued that the evidence was insufficient to estabish his guilt beyond a reasonable doubt.  The Seventh Circuit, per Judge Rovner, agreed.

Although Katz’s fingerprints were on the shotgun, it was impossible to tell how old the fingerprints were.  Nor did the evidence at trial establish when exactly Katz had become a felon, other than that it happened sometime before the altercation with Grice.  For all the Seventh Circuit could tell, Katz might have handled the gun long before his felony conviction.  Thus, the evidence was insufficient to establish actual possession of a firearm by a felon.

What of constructive possession?  If the gun had been found in Katz’s residence, then the government would have been home free.  But are we prepared to extend the constructive possession doctrine to the residence of a felon’s girlfriend?  Is it fair to infer that a guy really has control over all of the property in his girlfriend’s home?

The Seventh Circuit answered no, at least on the facts of Katz:

There is no evidence whatsoever that Katz resided at the premises, or even that he had ever stayed at the home for any period of time.  The only evidence presented indicates that the home belonged to Grice exclusively: the lease was in her name; she did not want to leave him in the home when she left for work; she called police to have him removed from her home; and she possessed the keys.  He apparently did not have keys because he took hers when he left the premises.  There are none of the indicia of joint possession of the premises that we have found in other cases.  (7)

In trying to show constructive possession of the premises, the government relied on the fact that Katz carried $1,800 in cash at the time of his arrest.  The goverment’s theory was that (a) drug dealers often carry large amounts of cash, (b) drugs were found in Grice’s home, (c) therefore, Katz was dealing drugs from Grice’s home, (d) drug dealers often keep guns around the places where they deal drugs, and (e) therefore, the gun at Grice’s home must have been Katz’s.  Just stating the government’s argument reveals how speculative the reasoning was, and the Seventh Circuit appropriately found it insufficient to support a criminal conviction.  Interestingly, then, this is the second week in a row in which the Seventh Circuit has rejected inferences of specific criminal activity drawn from the fact the defendant happened to be carrying a few hundred dollars at the time of his arrest.  (For last week’s case, see my post here.)

3 thoughts on “Seventh Circuit Criminal Case of the Week: The Limits of Constructive Possession”

  1. It’s incredible how prosecutors, judges, police and everybody else on the “injustice system” payroll ignore U.S. Supreme Court rulings in all criminal cases. This system has rampantly evolved into a huge source of revenue and job security for all states. The states are free to spend as much money of the taxpayers at will, with no accountability whatsoever. Taxpayers are too busy working to live and pay taxes, to have the time to check on how their tax dollars are being used to advance the personal careers of DA’s, judges and the like.
    Can somebody tell me why this U.S. Supreme Court ruling is not followed in these type of cases?

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    U.S. Supreme Court HAYNES v. UNITED STATES, 390 U.S. 85 (1968)

    We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under 5841 or for possession of an unregistered firearm under 5851.

  2. In PA, at least, conviction of a 2nd degree misdemeanor means no guns for life. Steal $51 from someone and you lose your right to bear arms.

  3. Most judges, cops and lawyers don’t know the law or even understand the context of the content. It’s nothing more than a idiotic litigation contest. Fact and law do not matter in the system even if one stands their ground and proves their side. The system protects its lackeys even if they screw up. In the end it’s the judges’ discretion and their lust for tyrannical power that ultimately determines what happens especially in lower courts. Our injustice system needs to be revised and the laws as well so that everyone has a complete and full understanding

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