One of the most common things people say when police confront them with drugs found in a search is “those aren’t mine.” While drug possession lawyers suggest never talking to the police without an attorney present, you can sometimes successfully fight drug charges on the grounds that they weren’t actually yours. This is particularly true if drugs are found in your home or car, which are shared with friends, roommates or family members.
Constructive Possession and Drug Charges
When it comes to the matter of who will be charged with possession when drugs are found in a communal house or vehicle, the law focuses around what is known as “constructive possession.” In order to be guilty under this definition of possession, the drugs don’t actually have to be in your physical possession, but you need to have knowledge of the drug’s presence and the ability to maintain control over the drug. In other words, if you have a roommate that brought home a bag filled with ecstasy and he leaves it in the living room without telling you, you couldn’t be held legally responsible for the pills, even if you were sitting in the living room right beside the pills when the police searched your home.
Similarly, if you knew about the drugs, but your roommate kept them in a locked safe that you did not have access to, you still wouldn’t be in possession of the pills because you did not have any control over the drugs. On the other hand, if you knew about the drugs and could easily exert control over them, even if it just met moving moved them back to your roommate’s room, the prosecutor could argue that you still exercised constructive possession and thus, could be charged with possession.
Dominion and control is what the police look for when they are unsure who lives in a particular room or part of a shared residence. The police look for clothing and bills to see if the suspect has dominion and control over a room or area.
What is Considered Knowledge and Control Over a Drug?
Defining knowledge and control in drug possession cases, it can sometimes be a little difficult, especially the control aspect. That’s why you should talk to your defense lawyer before attempting to defend yourself by saying you didn’t know or weren’t in control of the drug. Knowledge is fairly straight forward as it involves knowing that the substance is on or around your property and that you knew, or at least should have known, that the drug is illegal.
The ability to control of the drug is a little less difficult to define and will vary greatly on a case to case basis. Essentially though it means you are aware you have the ability to control the whereabouts of the drug. For example, if you have keys to a van where a drug is being stored and are aware that the drugs are in the van, then you have the ability to take control of the drug. Generally speaking, if you are the only person who lives in a home where drugs are found, you will be charged with possession as it is assumed you could exercise control over the substance and knew it was there.
It’s worth noting that more than one person can be charged with possession, so just because your roommate tells the police the drugs are his doesn’t mean you’ll be cleared of the charges.
Fighting Drug Possession Charges
If drugs are found in your home or vehicle, then you will usually be arrested, but that doesn’t mean you are guilty. Police will do whatever they can to get you to either confess or at least say something that will hurt your defense later on. This is why you need to wait until your attorney is present before agreeing to speak with the police.
It’s important to remember that just because drugs are found on your property doesn’t mean you are guilty, but if there is evidence that you could access them and knew about them, you can still be charged.
If you have been accused of possession of drugs or if drugs have been found on your property and you have not yet been charged, please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss.
Image by Matthew T. Rader