HOUSE FILE _____

BY  (PROPOSED COMMITTEE ON PUBLIC SAFETY BILL BY CHAIRPERSON BAUDLER)

A BILL FOR

An Act relating to possession under the criminal law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  Section 124.101, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  25A.  “Possess” or“possession” means as defined in section 702.13A.
   Sec. 2.  Section 124A.2, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  5.  “Possess” means the same as defined in section 702.13A.
   Sec. 3.  NEW SECTION.  702.13A  Possession.
   “Possess” or “possession” means having knowledge of the presence and nature of an object or substance and having either actual or constructive possession of the object or substance. Possession may be sole or joint. A person may be in possession of an object or substance without having a proprietary interest in the object or substance or a right to possess the object or substance.
   1.  A person has“actual possession” when a person has direct physical control of an object or substance on the person or within reach and convenient control.
   2.  A person has“constructive possession” when a person is not in actual possession, but has knowledge of the presence and nature of an object or substance and has the power and intent to exercise control over the object or substance, either directly or through another person. Constructive possession may be inferred, and no further proof of knowledge or intent is required, when an object or substance is found in a place exclusively accessible to the person. When a person does not have exclusive access to the place where the object or substance is found, a trier of fact may determine a person’s knowledge and intent from the totality of the circumstances, including the person’s proximity to the object or substance, the person’s access to the area where it is found, whether it is in plain view, any incriminating statements or actions by the person, whether the object or substance is found in or near the person’s belongings, and any other relevant circumstances. In the context of possession of controlled substances, a trier of fact may also consider the person’s possession of drug paraphernalia and evidence of recent drug use by the person and any other relevant circumstances.
EXPLANATION
   This bill defines the term “possess” or “possession” for purposes of a criminal case to mean having knowledge of the presence and nature of an object or substance and having either actual or constructive possession of the object or substance. Possession may be sole or joint. Under the bill, a person may be in possession of an object or substance without having a proprietary interest in the object or substance or a right to possess the object or substance.
   The bill defines “actual possession” to mean when a person has direct physical control of an object or substance on the person or within reach and convenient control of the person.
   The bill defines “constructive possession” to mean when a person is not in actual possession, but has knowledge of the presence and nature of an object or substance and has the power and intent to exercise control over the object or substance, either directly or through another person. Constructive possession may be inferred, and no further proof of knowledge or intent is required, when an object or substance is found in a place exclusively accessible to the person. The bill provides that when a person does not have exclusive access to the place where the object or substance is found, a trier of fact may determine a person’s knowledge and intent from the totality of the circumstances, including the person’s proximity to the object or substance, the person’s access to the area where it is found, whether it is in plain view, any incriminating statements or actions by the person, whether the object or substance is found in or near the person’s belongings, and any other relevant circumstances. In the context of possession of controlled substances, a trier of fact may also consider the person’s possession of drug paraphernalia and evidence of recent drug use by the person and any other relevant circumstances.