What is the Definition of Possession of Drugs?

Under federal law, “possessing” drugs is more than “having” or even “holding” drugs. Drug possession, as defined in 21 USC § 844. In federal court, drug possession is usually a misdemeanor, regardless of the amount of contraband. However, if the defendant possesses a significant amount, U.S. attorneys usually enhance charges to something like drug trafficking, especially if officers find additional circumstantial evidence, like cash or baggies.

The good news is that, in state and federal court, drug possession and all other drug charges only hold up in court if prosecutors establish all three of the elements discussed in this post beyond any reasonable doubt. So, a Tampa criminal defense lawyer doesn’t have to “prove” the defendant is “innocent.” An attorney must only establish reasonable doubt, a theme we’ll explore in this post.

Close Proximity

Legally, close proximity is more than arm’s length. Close is more like readily accessible. For example, in most cases, any item in a vehicle’s passenger compartment, which includes a pickup truck’s bed or car’s trunk, satisfied the close proximity requirement.

This element is difficult to challenge on a substantive level. Therefore, a Tampa criminal defense lawyer often looks to procedural defenses, such as an illegal search and seizure.

Drugs and other physical evidence are inadmissible in court unless officers had a valid search warrant or a narrow search warrant exception applied. Some common ones include:

• Exigent Circumstances: This exception often applies if officers respond to a disturbance call at a residence or building. In these situations, officers can enter without warrants, look around, and make sure everyone is okay. While inside, they may seize any contraband that’s in plain view.
• Plain View: If an officer sees a baggie of drugs or other contraband, the officer doesn’t need a warrant to seize it. The problem is that baggies or other containers of drugs usually don’t have labels. An illegal substance, like marijuana, is often indistinguishable from a legal substance, like hemp.
• Owner Consent: Owners, or apparent owners (e.g. roommates whose names aren’t on the leases) may give officers verbal consent to search property. Consent is an affirmative, voluntary act. Additionally, officers can only ask once. They cannot keep asking apparent owners for consent until someone says yes.

Incidentally, officers often say they’ll get search warrants if owners don’t consent. These threats are usually empty threats. If officers had probable cause to obtain warrants, they wouldn’t ask for consent.

Actual Knowledge and Exclusive Control

We’ll group these two elements together because they’re similar in many respects. Substantive defenses are usually available on both elements. Remember, the defense must only be strong enough to create a reasonable doubt.

Assume Joe is a backseat passenger in a car full of people. Officers pull over the car and the driver gives them consent to search. After officers find drugs under a front seat, they arrest everyone in the car, including Joe.

As mentioned, since the drugs and Joe were both in the passenger compartment, prosecutors can probably establish close proximity. But they probably cannot establish actual knowledge or exclusive control.

Joe might have put the drugs under the seat himself and he might retain exclusive control over them. But more than likely, prosecutors can’t prove these things in court.

Connect With a Diligent Hillsborough County Attorney

A criminal charge is not the same thing as a criminal conviction. For a confidential consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. We routinely handle matters throughout the Sunshine State.

Source:

justice.gov/usao-nh/frequently-used-federal-drug-statutes