Constructive Possession

Most people know that law makes it a crime to possess certain things, like drugs or child pornography. Most people may not know that under the law, there are two kinds of possession: actual and constructive.

Here’s how a pattern jury instruction from the U.S. Court of Appeals for the First Circuit defines actual and constructive possession:

The term `possess’ means to exercise authority, dominion or control over something. It is not necessarily the same as legal ownership. The law recognizes different kinds of possession.

Possession includes both actual and constructive possession. A person who has direct physical control of something on or around his person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it.

Pattern Jury Instructions: First Circuit 4.06 (1998).

I actually like the Model Penal Code’s formulation better. As I’ve noted before, the Model Penal Code is, as its name implies, a template of criminal statues that was intended to serve as a guide for state and federal legislators. This is how the Model Penal Code defines possession as an act that can support criminal liability:

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.

Model Penal Code § 2.01(4).

As I’ve explained before, both state and federal laws make it a crime to knowingly possess child pornography. Usually, the evidence shows actual possession as, when, say, the investigators can prove he intentionally downloaded child pornography from the Internet to his hard drive.
Often in those cases, the downloaded images will be tidily assigned to various files . . . all of which makes it hard for the defendant to claim that he did not “knowingly procure” the images.
Sometimes, though, it’s difficult for the prosecution to prove possession, as it was in Barton v. State, 286 Ga. App. 49, 648 S.E.2d 660 (Georgia Court of Appeals 2007). Edward Barton was convicted of knowingly possessing child pornography and appealed, arguing that the state did not prove possession as required by the Georgia statute.

Here’s how the case began, according to the Court of Appeals:

[A]fter the Walker County Sheriff's Department began investigating allegations of child molestation against Barton, his wife provided authorities with Barton's laptop computer. Upon conducting a forensic examination of that computer, [officers] retrieved 156 images they believed met the definition of child pornography stored on the computer's hard drive.

Barton v. State, supra. Barton was indicted for possession of child pornography based on 106 of those images, challenging, as I noted, the state’s proof of “possession.”

[T]he State sought to prove Barton's knowing possession of child pornography via the testimony of Special Agent Ben Murray of the United States Secret Service, a forensic computer analyst. Murray testified that all computers store pictures or other information viewed over the Internet on the computer's hard drive, in temporary Internet file folders. There is nothing a user can do to prevent the computer from storing such items. Murray also explained that not everything stored in a computer's temporary Internet file folders results from the affirmative conduct of a computer user. Rather, even those images which `pop-up’ on a computer screen, even though neither sought nor desired by the computer user, are stored on the computer's hard drive. Furthermore, despite the fact that they are stored on the hard drive, Murray testified that no one using the computer can retrieve information stored in the temporary Internet file folders without special forensic software. No such software was present on Barton's computer.

Murray testified that each of the pornographic images on Barton's computer was stored on the hard drive of his computer, in temporary Internet file folders. This meant Barton had viewed the pictures over the Internet, but had taken no affirmative action to save them on his computer. Barton could not access or alter the pictures found stored on his computer's hard drive. Murray further testified that Barton had viewed all of the images within two separate time periods, totaling slightly less than four hours, on December 2 and 3, 2003. He offered no testimony as to whether the images resulted from some affirmative action by Barton, represented `pop-ups’ which appeared on Barton's computer, or both. Although Murray could not tell how long Barton had spent viewing each individual image, or how long he had kept those images open on his computer, he could say that Barton had never opened any image more than once.

Barton v. State, supra. Barton argued that the agent’s testimony was insufficient to

establish his knowing possession of child pornography because: (1) he took no affirmative action to store the images on his computer; (2) he was unaware that the computer had automatically saved those images to the hard drive; and (3) he had no ability to retrieve or access those images.

Barton v. State, supra.

The Court of Appeals began its analysis of Barton’s argument by noting that “the question . . . is whether . . . the mere accessing and viewing of pornographic materials over the internet, which results in those materials being stored on a computer's hard drive, constitutes the knowing possession of those materials”. Barton v. State, supra. It noted that none of the courts that had addressed this issue had found that someone can be

convicted of possessing child pornography stored in his computer's temporary internet file folders, also known as cache files, absent some evidence that the defendant was aware those files existed. Several . . . courts specifically found there can be no possession where the defendant is unaware the images have been saved in the cache files, reasoning that such ignorance precludes a finding that the defendant could exercise dominion or control over those images. . . . As one federal court has explained: `Where a defendant lacks knowledge about the cache file, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession . . . of the child pornography images located in those files, without some other indication of dominion and control over the images.’

Barton v. State, supra (quoting U.S. v. Kuchinski, 469 F.3d 853 (9th Cir. 2006)).

The Barton court concluded, from this, that the prosecutor in the case before it “was required to show that Barton had knowledge of the images stored in his computer’s cache files” in order to convict him of knowingly possessing child pornography. Barton v. State, supra. It found that the prosecution had not done this:

The sole witness on this issue -- Agent Murra -- testified that Barton took no affirmative action to save these images to his computer, a conclusion supported by the fact that all of the pictures were stored on the cache drive as `thumbnails.’ See McDonald v. State, 249 Ga.App. 1 (2001) (citing expert testimony that “if only the ‘thumbnail’ image appeared on a hard drive, this would indicate no one ever [attempted] to download the [image]”). Murray offered no testimony indicating Barton was aware the computer was storing these images, but instead established only that these files were stored automatically, without Barton having to do anything.

Murray also testified that Barton would have been unable to view or access these images without using software that was not present on Barton's computer. Thus, there was no way Barton could have learned of the cache files in the normal course of using his computer. Nor did the State present any circumstantial evidence that would have allowed the jury to infer Barton's knowledge of these files -- i.e., they did not show that Barton was an experienced or sophisticated computer user who would have been aware of this automatic storage process. In short, the State presented no evidence that Barton was aware of the existence of the files at issue, and in doing so, they failed to prove that Barton knowingly possessed these images.

Barton v. State, supra.

The court therefore reversed Barton’s conviction. Since I suspect the reason the state did not present any other evidence showing Barton knowingly possessed the images – either actually or constructively – is because it didn’t have any. If that’s true, it presumably means Barton cannot, and will not, be convicted of possessing the images on his computer.