Illinois Court Clarifies Law on Constructive Possession of a Weapon

b2ap3_thumbnail_Constructive-Possession-of-weapon.jpgThe charge of aggravated unlawful use of a weapon (AUUW) is a serious crime in Illinois and can carry harsh penalties. Constructive possession of a weapon exists when an offender does not have the weapon on his or her person, but does exercise control over it. The Illinois Appellate Court’s recent ruling in People v. Daniel Smith clarifies existing law on the type of evidence considered sufficient to constitute constructive possession.

The Case

In 2012, Greyhound bus driver discovered a bag containing a handgun that was left behind by a passenger. Intending to take the bag to his supervisor, the driver disembarked, carrying the bag. He was then approached by the defendant whom the driver recognized as a passenger who had been sitting near where the bag was found. The defendant proceeded to tell the driver that the bag was his. The driver asked him what was in the bag and he responded, “Nothing but a BB gun.” The driver refused to turn the bag over, and delivered it to his supervisor as planned. After law enforcement was contacted, the gun was identified as a semi-automatic handgun with a live round in the chamber. The defendant was arrested, charged, and convicted of six counts of aggravated unlawful use of a weapon.

The Elements of Aggravated Unlawful Use of a Weapon

In order to be found guilty of aggravated unlawful use of a weapon, the state must prove that the defendant:

  • Knowingly possessed a firearm; and
  • Was under the age of 21.

Knowing possession can be either actual or constructive. Because the weapon was not actually found on the defendant's person, the court considered whether enough evidence had been submitted to establish constructive possession.

Constructive Possession

Constructive possession is established when the state demonstrates that the defendant:

  • Knew of the weapon’s presence; and
  • Exercised control over the area where the weapon was found.

The state often uses circumstantial evidence to prove constructive possession, including evidence regarding the defendant’s acts, statements, and conduct. The court acknowledged this in People v. Daniel Smith, stating that physical evidence connecting a defendant to the weapon itself, or testimony that anyone saw him carrying the bag or weapon, is not required. Rather, the testimony offered by the driver about the defendant’s position near the area where the bag was found and the statements of ownership made by the defendant, combined with the driver's actual sighting of the gun, constituted evidence that was sufficient for a rational trier of fact to conclude that the defendant had constructive possession of the gun.

If you have been charged with aggravated unlawful use of a weapon, it is extremely important to seek the advice of an experienced attorney. Please contact the skilled Naperville criminal defense attorneys at Law Office of Glenn M. Sowa, LLC for a free initial consultation.