When you hear about a drug bust, the first thing that comes to mind is probably the stacks of drugs being seized by the authorities that you see on the evening news. However, most charges are for smaller amounts and many of the people charged with possession of illegal drugs are not even caught with the drugs in their pockets.
Most people charged with possessing illegal substances are charged when drugs are found on the ground nearby, inside of a vehicle they are driving or a passenger in, or inside of a house where they stay but of which they are not the owners or the renters on the lease.
Consequently, the prosecutors do not have direct evidence of possession, but instead must prove that the defendant had constructive possession of the substances. Constructive possession requires that the prosecutor prove beyond a reasonable doubt that the defendant (1) had knowledge of the drugs and (2) had immediate and exclusive possession of the drugs or control of them.
These cases can be largely circumstantial with many factors that may or may not indicate possession. For example, you borrow a friend’s car and the friend fails to tell you that there is cocaine in the glove compartment. You are driving the car that has controlled substances in it, but have no knowledge of those drugs.
Or say that you are staying with a family member who you know to deal marijuana. You might have some knowledge that drugs are in their apartment, but you are not in exclusive possession or in control of those drugs.
It is critical for the jury to know the answer to certain questions when the prosecution is attempting to establish constructive possession:
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Who owns the vehicle?
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Whose name is on the apartment lease?
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How many people were inside of the vehicle?
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How many people stay inside of the apartment/home?
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What physical evidence (such as fingerprints) evidence, if any, is there linking the drugs to the defendant?
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Did the defendant have a large amount of cash on his person?
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Did the defendant make any incriminating statements?
The answers to these questions will help determine if the prosecutor will be able to meet its burden of proof beyond a reasonable doubt.
We strongly encourage you to consult with an attorney if you are charged with possession of illegal substances. Call or email Richard Fenbert at Fenbert & Associates, LLC, for a free consultation.