They’re not my drugs
Can you be charged with drug possession if they’re not your drugs? Yes, but that doesn’t mean you will be convicted. Hi, my name is Dale Savage and I’m a criminal defense attorney here in Charleston, SC. Today we’re talking about drug crime defenses when they are not your drugs and what that means.
When it comes to drug possession the law recognizes two types of possession, 1) actual and 2) constructive possession. Actual possession is where the drugs are found on your person. This is not what we are discussing today. Constructive possession is where you do not have physical custody of the drugs but do have control over drugs or the premises where the drugs are.
Drug Crime Defenses
There are three common defenses to constructive possession cases:
- The search/seizure was unlawful;
- Mere presence; and
- You did not have possession.
Search and seizures
For police to conduct a search of your vehicle or residence they have to have a valid legal basis called probable cause or be given consent to conduct that search. Consent means that you agreed to let the police search and whether you knew it or not, you are saying police now do not need a legal basis to search.
Making a challenge based on a lack of PC means you’ve told police no they can’t search but they went ahead and searched anyway. To do this, police must have a valid legal reason to conduct that search or a good defense attorney will raise the fourth amendment violation and work to getting the drugs suppressed by a prosecutor or the court.
This means that you were in proximity of the drugs but did not have possession. So, if you are charged with drug possession b/c you were in a vehicle where drugs were found that’s not enough, the state needs to have more such as you were the owner and operator of the vehicle and if they don’t that’s not enough to get a conviction. Which is important, b/c it doesn’t mean you won’t be arrested but under those facts our laws have said that’s not enough to get convict you.
To have dominion and control over the drugs or premises it depends on who you are in the case.
- In a vehicle, if you are merely a passenger and do not own and operate that vehicle, then you can argue you don’t have constructive possession.
- In a residence where you live but do not own our courts have said you may have had the right to access the area where the drugs were found but this doesn’t mean you have dominion and control over the property and therefore no possession.
Charleston Criminal Defense Attorney
If you are facing a drug charge and want to discuss your options, please call me at (843) 530-7813. I hope this video was helpful and thanks for watching.