The Alaska Court of Appeals held Friday that an item — in this case, a handgun — is not in someone’s possession if it belongs to someone else, yet is within reach.
On the Fourth of July, 2012, David Dirks was pulled over in Kasilof for driving under the influence of alcohol. He was also charged with weapons misconduct when police found a holstered handgun in the backseat.
According to Alaska statute, “A person commits the crime of misconduct involving weapons in the fourth degree if the person possesses on the person, or in the interior of a vehicle in which the person is present, a firearm when the person’s physical or mental condition is impaired as a result of the introduction of an intoxicating liquor or a controlled substance into the person’s body[.]”
However, the handgun in Dirks’ car belonged to his friend, Matthew Pemberton, who was also in the vehicle.
Dirks’ case raises the question of what exactly constitutes possession. Alaska courts have not settled on an answer.
In 2000, the Alaska Supreme Court dealt with a case (State v Niedermeyer) where a minor was arrested at a cabin for underage drinking. State law at the time allowed the Department of Motor Vehicles to revoke a driver license if a peace officer had probable cause to believe a minor had possessed alcohol, regardless of intent to drive.
Niedermeyer argued that basing license revocation on possession of alcohol was unconstitutionally vague, but the Court responded, “’Possession’ is a common term with a generally accepted meaning: having or holding property in one’s power; the exercise of dominion over property.”
“The supreme court may have been overly optimistic when it declared that ‘possession’ had a common, generally accepted meaning,” the Court of Appeals wrote in 2006 in Alex v State.
Like Dirks, Alex involved the alleged possession of a weapon in a vehicle.
While Dirks acknowledged awareness of Pemberton’s handgun in the backseat of his car, Alex, a convicted felon, said he did not know a “Tec 9” semi-automatic assault pistol was under the passenger seat of the car in which he was riding.
The State argued that Alex was in “constructive possession” of the gun, as opposed to actual possession.
As the Court of Appeals explained Friday in its opinion, “’Constructive possession’ refers to a person’s authority to exercise dominion or control over property even though it is not in their immediate physical possession. Thus, a person continues to ‘possess’ their household belongings even though the person is physically away from home.”
The Court of Appeals wrote in Alex that the concept of constructive possession “suffers from a lack of precision”:
For example, the children of a household might know that there is beer in the refrigerator or liquor in the cupboard. Assuming that it is within the children’s physical power to gain access to these alcoholic beverages, one might argue that the children are in “constructive possession” of these beverages — and thus guilty of a crime… because the children have “the power to exercise dominion or control” over the beverages.
In United States v Cousins, the Ninth Circuit Court of Appeals included an additional layer in the definition of constructive possession: “While [the] term ‘constructive possession’ is not free from ambiguity, it has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property.” (emphases added)
The State did not argue that Dirks intended to exercise dominion or control over Pemberton’s gun. Further, Pemberton testified that Dirks did not use the gun.
Though the Court of Appeals said there was no evidence to suggest Dirks had constructive possession of Pemberton’s handgun, and though the State did not specifically try to prove constructive possession, the “jumble” and “hodgepodge” of legal theories in the jury instructions included a definition of the term.
This allowed the State to argue that Dirks possessed Pemberton’s gun, the Court of Appeals said.
“The legal concept of ‘possession’ does not include all items of property that are within a person’s reach or in a person’s presence,” the court explained. “Shoppers walking down the aisle of a store do not ‘possess’ all of the merchandise lying before them on the shelves, nor do museum visitors ‘possess’ all of the artwork that they pass within reach of.”
On Friday, the Court of Appeals tried to chip away at the Supreme Court’s definition of possession, which “presents certain difficulties.”
“A defendant may not be found guilty of ‘possessing’ an item of property that belongs to someone else merely because the owner of the property has brought the property to the defendant’s residence, vehicle, or place of business, and has placed the property within the defendant’s reach, and the defendant is aware that the property is there,” the Court of Appeals held.