David A. Cmelik Law PLC represents criminal defendants in Iowa facing possessory as well as other criminal charges. Become an informed legal consumer and contact the law firm today for a free initial consultation. 

"The still was a part of the paraphernalia seized at the time of the search in question."

A Google NGram analysis of the phrase "illegal possession" in literature catalogued by Google indicates the phrase did not gain widespread popularity in the mainstream until the mid twentieth century-- and took off from there. 

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What is "illegal possession" in Iowa? 

by David Cmelik

 It seems strange, but the possession of contraband—guns, drugs, or worse— is at the heart of our criminal law in Iowa. To have something deemed illict is a criminal offense, even if you don’t use it. Defendants sometimes tell me: “I’m not guilty—I’ll pass a drug test!” But these offers will ring hollow to a prosecutor who needn’t prove use of a thing drug, for example, to demonstrate possession.

In any case, possessory offenses have been with us a long time.

Although mere possession of alcohol without an intent to sell is validated as legal in an 1872 case, possession with the intent to sell was then illegal. see Niles v. Fries, 35 Iowa 41, 42 (1872).

The Court held:

“The keeping of intoxicating liquors, with no intent to sell them within the State contrary to law, is not forbidden by the statute for the suppression of intemperance. Rev., § 1559. Intoxicating liquors in the possession of a citizen who holds them for the purpose of selling them lawfully within the State, or for transporting them without the State, for lawful traffic, are not, under the statute, subject to seizure. § 1525. To constitute the owning and keeping of intoxicating liquors unlawful, there must exist an intent to sell or dispose of them, within the State, contrary to law. In the absence of such intent, the possession of this kind of property is lawful.”


On the other hand, as far as can be determined, the simple possession of counterfeit money appeared to itself be illegal, as pronounced in an indictment in Iowa and affirmed by the Iowa Supreme Court in 1849, when Sylvanus Buckley allegedly possessed and later passed counterfeit coins to another. See Buckley v. State, 2 Greene 162 (Iowa 1849).

As you can imagine, the subsequently illegal possession of contraband liquor owed its history to the temperance movement that inspired prohibition. In 1929, the Iowa Supreme Court held that mere possession of intoxicating liquor did not create a presumption that the possessor also intended to be a bootlegger. State v. Bamsey, 208 Iowa 802, 226 N.W. 57 (1929). A 1930 case quoted the State law outlawing the possession of intoxicating liquor. State v. Matthes, 210 Iowa 178, 191 (1930)(quoting Section 2224-4, Or. L.)(“’it shall be unlawful for any person to receive, import, possess, transport, deliver, manufacture, sell, give away or barter any intoxicating liquor within this state . . .’”).

The same case affirmed the admission of a still as a trial exhibit, attributed to the defendant who not surprisingly disavowed any ownership therein. See id at 180(“The still was a part of the paraphernalia seized at the time of the search in question. The court did not err in overruling the objection that was interposed to the offer of this exhibit”).

Illegal drug possession rose with the so-called war on drugs. In 1924, it appears Iowa amended its statutes to criminalize the mere possession of any narcotic without a valid prescription. See State v. Korth, 204 Iowa 1360, 1362-63 (1928)(quoting Section 3154, Iowa Code of 1924)(“The possession or control of narcotic drugs for any purpose, unless obtained upon the original written prescription of a licensed physician, dentist, or veterinarian, who has registered under the Federal law regulating the traffic in narcotic drugs, is prohibited by the statute of this state”).

In 1929, law enforcement agents were already scheming to figure out ways to snare a morphine dealer who traveled from Chicago to Creston, Iowa, and back again to ply his trade. State v. Heeron, 208 Iowa 1151, 1154 (1929)(noting that the instructions to the jury were eminently fair to defendant, including instruction that added the word ‘illegal’ to the possession of narcotics and fully instructed the jury on the defense theory of entrapment).

Today, the things one might not possess in Iowa are many. One may not possess controlled substances. Iowa Code § 124.401(5). Carrying weapons, which includes the possession of a firearm typically on one’s person or inside a car or truck, typically loaded and unsecured, as well as  knives of varying lengths and other dangerous weapons, without a valid carry permit, is also illegal. Iowa Code § 724.4. Possession of explosives without a valid user’s permit is a Class “C” felony. Iowa Code § 101A.3(4). Possession of burglary tools with the intent to commit a burglary is an aggravated misdemeanor. Iowa Code § 713.7. Possession of weapons during burglaries, robberies, assaults, and other crimes can enhance the classification and penalty of such offenses. The possession of a device designed to gamble for money—think: slot machine—is also illegal in Iowa. Iowa Code § 725.9.  Possession of a known forged document is itself illegal. Iowa Code § 715A.2(d).

If the State alleges criminal possession today, the Court will most likely rely on the following model instruction at jury trial:

“’Possession’” includes actual as well as constructive possession, and also sole as well as joint possession. A person who has direct physical control of something on or around [his] [her] person is in actual possession of it. A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or right to maintain control of it, either alone or together with someone else, is in constructive possession of it. If something is found in a place which is exclusively accessible to only one person and subject to his or her dominion and control, you may, but are not required to, conclude that that person has constructive possession of it. If one person alone has possession of something, possession is sole.  If two or more persons share possession, possession is joint.”

Possession is a many splendored thing. When it comes down to it, a jury may have to decide whether someone “possessed” something sufficient to make it a crime.

If you or a loved one have been charged with a criminal offense in the State of Iowa, please contact David A. Cmelik Law PLC for a free initial consultation. Remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client privilege. 

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