Possession Crimes Defense

The term “possession” in criminal law is critical. This law can send a person to prison for years on a drug or gun crime. Or it can set the person free. And the key to this law is in its definition. The law contains two important requirements–control and knowledge. In other words, the person must control the contraband. And the person must know it is contraband.

Also, control and knowledge protect innocent people from a wrongful conviction. If the prosecutor can not show the person had both control and knowledge, then the person is innocent. Finally, we will learn how defense lawyers use this to defend clients charged with possession crimes. But first, let’s review the definition for possession.

Possession Meaning in Texas Criminal Law

Texas law defines possession as “actual care, custody, control, or management.” In addition, the State must prove that a person acted knowingly or intentionally:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Texas Penal Code Section 6.03 (a)&(b).

To clarify, the State must show that a person knowingly or intentionally possessed contraband. For example, the person must know that he possessed drugs, guns, or stolen property. This knowledge or intent requirement protects innocent people from a wrongful conviction.

Left Holding the Bag

Thus, a person can carry a gym bag or purse for a friend. If the bag contains methamphetamine, coke, or heroin, then this person has custody of the drugs. However, if the person is not aware there are drugs in the bag, then the person is not guilty of a drug crime. This is because the person does not have criminal intent to possess the drugs. In the alternative, if the person knows the bag has drugs, then this person is in criminal possession of drugs.

Moreover, this example shows the two key questions in possession cases. First, was the person in control of the contraband? Second, did the person know or intend to possess the contraband. The answers to these questions will determine if a person is guilty or innocent of a possession crime.

But this is only half the story. Notably, we need to talk about two types of possession–actual and constructive possession.

Actual Possession vs. Constructive Possession

Actual possession means direct physical control over the contraband. This term is straightforward and easy to apply. To illustrate, if police find a gram of cocaine in your pocket, then you are in actual possession of the drugs. These are hard cases to defend because you have physical control over your pockets. And most people know what is in their pockets. This makes it tough to deny knowledge of the drugs.

In contrast, constructive possession means knowingly having the power and intention to exercise dominion or control over a thing, either directly or through another person. Constructive possession differs from actual possession because the person usually does not have physical control of the contraband.

This definition is technical. But an example will show how constructive possession works. Suppose police find drugs at a person’s home while he is at work. Further, the drugs are in his bedroom. And no one else lives at this house other than the person. In this situation, the person constructively possess the drugs. That is, he alone controls the location where the drugs are found. Therefore, he is in constructive possession of the drugs.

In short, control is the common link between actual and constructive possession. The government must show the person controlled the contraband under either theory. If there is no control, then the person is not guilty of a possession crime.

Affirmative Links in Joint Occupancy Cases

But what happens when police find contraband in a house or car that has multiple occupants. Courts call these joint-occupancy cases in federal court. In state court, lawyers and judges call them affirmative-links cases. But the idea is the same. Prosecutors must prove more than that the person had control over the place where the contraband is found.

In Texas state court, the affirmative-links rule protects innocent people who–through bad luck–are near someone else’s drugs. This rule recognizes that a person such as a father, son, or roommate can jointly possess property like a house or a car. But at the same time, these innocent bystanders do not jointly possess the contraband found in the house or car.

In these situations, courts look to additional evidence that links a person to the drugs. Courts call this the affirmative links rule. In particular, courts consider 14 factors to find out if a person knowingly possessed contraband. Below are several of the most important link factors:

  1. How close was the person to the contraband;
  2. Was the contraband in plain view;
  3. Did the person admit to the crime; and
  4. Did the person own the house or car where the contraband was found.

Conversely, the Fifth Circuit Court of Appeals did not adopt the affirmative links rule in federal cases. However, like Texas state courts, the Fifth Circuit requires the government to show more than ownership or control of the premises in joint-occupancy cases. Accordingly, the government must provide evidence the person had knowledge of and access to the contraband. This includes showing the contraband was in plain view.

But how does this work in real life? Let’s consider a common scenario–the traffic stop.

Traffic Stops

Traffic stops give police opportunities to search cars for drugs or contraband. During a routine stop, police will often ask the driver for permission to search the car. Drivers frequently consent. If police find drugs in the car that has multiple occupants, then the officer must make a decision. Who do he arrest for the drugs? He can arrest the driver, the front-seat passenger, or the rear-seat passenger. He can also arrest all of them.

But what if the officer finds the drugs in a backpack belonging to the backseat passenger? And what if the officer arrests the front-seat passenger and driver for the drugs? In this situation, the driver and front-seat passenger can challenge the possession element of the drug crime. They can argue they had no control over the backpack. And they can argue they did not know the backpack contained drugs. In short, they will argue there is no evidence linking them to the drugs in the backpack.

Examples of Possession Crimes

The defense we discussed above applies to many possession crimes. In each of the possession cases listed below, the defense must determine if there is evidence of both control and knowledge:

Am I Guilty of a Possession Crime?

The term “possession” in criminal law is broad. It allows police to arrest and prosecute people for a wide variety of drug, gun, and property crimes. And whether someone is guilty of a possession crime will depend on two things–control and knowledge. But as one court stated, “the law is designed to protect the innocent bystander from conviction based solely on his fortuitous proximity to someone else’s drugs.”

Law Office of Genaro R. Cortez, P.L.L.C.

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