Definition
To possess, in law, is to have something within one's control — whether by physical holding or by a recognized legal relationship to the thing. The term appears across criminal law, property law, and regulatory contexts, and its meaning shifts depending on which body of law is applying it.
1. Criminal law. To possess contraband, a controlled substance, or a prohibited weapon is to have it within one's knowing control. Physical contact is not required. Courts distinguish actual possession (the item is on the person) from constructive possession (the item is elsewhere but the person has the ability and intent to exercise control over it). Knowledge that the item exists, and knowledge of its nature, are generally required elements.
2. Property law. To possess real or personal property is to occupy or hold it with the intent to exercise dominion over it. Possession in this sense may or may not coincide with legal title — a tenant possesses leased premises; a landlord holds title.
3. Regulatory law. To possess a regulated item (a license, a firearm, a controlled substance in a medical context) is to hold it in a manner authorized by law. Regulatory frameworks frequently define possess by statute, sometimes more narrowly than the criminal law default.
Common Language
Modern common usage (Wiktionary): To have something as, or as if as, an owner; to have, to own. Also used figuratively — to be possessed by an idea, or by a supernatural force.
Historical common usage (Webster's 1913): To occupy in person; to hold or actually have in one's own keeping. Also, to have legal title to; to be master of; to own.
The gap between common and legal meaning is significant in criminal law. Common usage treats possession as essentially synonymous with ownership or physical holding. Criminal law breaks those two elements apart: a person can possess a thing without owning it (a dealer possessing drugs belonging to a supplier), and can possess a thing without physically touching it (constructive possession). The ordinary speaker who "possesses" something in the everyday sense almost certainly has it in hand. The criminal defendant can possess the same thing locked in a storage unit across town.
Common Confusion
Actual possession vs. constructive possession: These are not different crimes but different theories for satisfying the same element. Actual possession means the item is on the person or immediately at hand. Constructive possession means the person has dominion and control over the item and knows of its presence, even without physical contact. Historical sources tend to describe only actual possession, which understates the reach of modern possession law.
Possession vs. ownership: Possession is a factual condition; ownership is a legal status. They often coincide but need not. Many criminal possession statutes explicitly disclaim ownership as a defense.
Possession vs. use: Some statutes criminalize possession, some criminalize use, some both. Researchers should not assume the terms are interchangeable when reviewing historical drug and alcohol regulations.
Core Elements
In criminal possession offenses, courts typically require proof of:
1. Knowledge of the item's presence. The defendant must know the item exists in the relevant location.
2. Knowledge of the item's character. The defendant must know (or, in some formulations, have reason to know) what the item is — a controlled substance, a firearm, etc.
3. Control. The defendant must have the ability to exercise dominion over the item, either actually or constructively.
These elements are not codified uniformly. Strict liability possession offenses exist (particularly for regulatory violations), and some statutes permit inference of knowledge from proximity or control.
Recognized Forms
/SUBTYPES
Actual possession: Physical, immediate control over the item.
Constructive possession: Dominion and control without physical contact, often proven through access, knowledge, and circumstantial evidence.
Joint possession: Two or more persons simultaneously possess the same item. Neither exclusive control nor sole knowledge is required.
Knowing possession: Possession coupled with awareness of the item's presence and nature; the standard for most criminal offenses.
Unwitting possession: Possession without knowledge of the item's presence or character; generally a defense, though burden allocation varies by jurisdiction.
Why It Matters in Research
Researchers navigating historical sources will find the term possess used almost exclusively in its property-law sense before the twentieth century. The explosion of criminal possession law — first through alcohol prohibition, then through narcotics regulation — transformed possess into one of the most litigated words in American criminal law, but older dictionaries reflect none of this.
The Bouvier entry illustrates the transitional moment: its operative example is drawn from National Prohibition Act litigation, where courts were forced to work out what it meant for a warehouse to "possess" alcohol it was holding for others. That question — whether passive custody with no beneficial interest or intent to control constitutes possession — runs through drug law, weapons law, and money laundering to the present day.
Constructive possession doctrine is largely invisible in historical dictionaries. Black's (2nd Ed.) defines possess in terms of actual, physical control. Researchers relying on that definition alone will misunderstand most modern criminal possession cases, where constructive possession theories are common and often decisive.
Jurisdictional variation in possession law is substantial. Federal drug statutes, state controlled substance acts, and weapons laws each define possession (explicitly or implicitly) in ways that may differ on the knowledge element, the constructive possession standard, and how joint possession is charged. When researching a specific possession offense, the researcher should locate the applicable statute's definition before assuming the common-law default applies.
Possession offenses are also often the lowest rung of a charging ladder. Simple possession, possession with intent to distribute, and distribution are frequently charged alternatively or in sequence. Researchers should map the full charging structure when the underlying conduct involves drugs or weapons, not only the possession count.
Historical Dictionary Support
Black's (2nd Ed.) defines possess as "to occupy in person; to have in one's actual and physical control; to have." This is a property-law definition and accurately captured the dominant usage at the time of publication. It does not anticipate constructive possession, joint possession, or the mens rea requirements that criminal law would develop across the twentieth century.
Bouvier takes a more applied approach, anchoring its entry to a specific Prohibition-era dispute. The warehouse example is instructive precisely because it shows courts resisting an expansive reading of possess — the warehouse held liquor but exercised no dominion over it for its own purposes and therefore did not possess it within the statute's meaning. This reasoning echoes in modern cases distinguishing mere proximity from control.
Both sources agree that physical control is the core of possession and that the possessor must have some relationship to the thing beyond mere presence near it. Neither source addresses the mens rea dimension or the constructive possession doctrine that now dominates criminal litigation. Researchers using only these historical dictionaries will find the civil possession concept but will need to supplement substantially for criminal law applications.
Jurisdictional Note
Federal courts apply a constructive possession standard requiring knowledge and ability to exercise dominion or control. State courts generally track this framework but vary on how knowledge is proven, what inference instructions are permissible, and whether joint possession requires a specific agreement. Some states codify their possession definitions within controlled substance or weapons statutes; others rely on common law elaborated through case law.
Encyclopedia Cross-Reference
Drug Possession — Simple Possession (The Law Mind Criminal Law Encyclopedia)
Drug Possession with Intent to Distribute (The Law Mind Criminal Law Encyclopedia)
Weapons Offenses — Unlawful Possession (The Law Mind Criminal Law Encyclopedia)