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Can I Be Arrested for Drugs That Aren’t Mine?

Walker Law LLC June 24, 2022

Judges Gavel with Stethoscope and Pills Close UpStates across the nation have been minimizing criminal penalties for marijuana charges, and Missouri has, to some degree, followed the trend. Possessing less than 10 grams of marijuana is just a misdemeanor with a maximum fine of $500. Amounts greater than that can land you in jail for a year or more. Penalties for possessing, distributing, selling, or manufacturing other drugs are all felonies with serious consequences.

But consider this scenario: you pick up a friend to drive to a gathering with friends. Your friend has more than 10 grams of marijuana, and they stow it in the passenger-side door pocket. You are pulled over for a minor traffic violation, and the officer asks to search the vehicle. Not knowing that marijuana has been stowed in your vehicle, you agree. Pretty soon, you and your passenger are being hauled off to the station for drug possession.

Problem is, you had no idea there was marijuana in your vehicle. How can the police charge you with possession when you were ignorant of the substance being transported in your vehicle? Here’s where the concept of constructive possession comes into play. If you, as the driver, had control of where the marijuana was, you can be said to have constructive possession and be charged just as the actual owner would be.

This sounds unjust, but in many cases, the prosecution can make the charges stick, though there are valid defenses you can employ. The burden is on the prosecution to prove that you had control of the substance and that you had knowledge that it was there.

If you are being investigated for or charged with constructive possession of a controlled substance in Chesterfield, Missouri, contact me at Walker Law LLC. Before becoming a criminal defense attorney, I spent 15 years as a law enforcement officer, and I know the nuances of the law and how prosecutors operate. I can help you mount an aggressive defense and even work to get the charge dropped before trial.

I proudly represent clients in Chesterfield, St. Louis, St. Charles, and throughout the counties of St. Louis and St. Charles, Missouri.

What Is Constructive Possession?

Here’s another example of how you could be charged with constructive possession: Your roommate smokes marijuana and keeps the substance within the apartment you share with him. Now, if he stows the marijuana in a place in his bedroom to which only he would have access, you probably would not be said to have constructive possession – unless you join him in the bedroom accessing the stash and enjoying it in tandem.

If, in contrast, your roommate keeps the marijuana in a common area – say, a drawer in the kitchen or a closet you both use – you could then be said to have constructive possession since you would have access to and control over the marijuana.

What if you’re a rideshare driver for Lyft or Uber, and you take on a passenger with a controlled substance in their possession and get pulled over for a ticket? A police search discovers the drug.

If the drug were solely in the possession of the passenger – in their pocket or backpack – you would likely not be in constructive possession. If they stowed it in a part of your vehicle to hide it from the police search, then, yes, you could be subject to a constructive possession investigation or charge.

Proving Constructive Possession

The key here is that police and prosecutors have to prove three elements to convict you of constructive possession:

  • The first is that you had “control” over the substance (see above examples);

  • The second is that you knew the drugs were present, and

  • The third is that you knew the substance was illegal.

Just because you are in close vicinity to a controlled substance does not automatically equate to your having control over the drug. The state must prove its case using the above three elements, including showing that you knew the drug was there and was illegal.

Defenses Against Constructive Possession

Obviously, knowledge of the presence of the drugs – and that they were illegal – is key to the prosecution’s case against you. Mere closeness to a controlled substance is not sufficient to prove a constructive possession case. Thus, showing you had no knowledge of the substance’s presence is a solid defense, even though it may be where you had theoretical control.

On the other hand, if you and your friend who are driving off to a social gathering intended to use the marijuana once you got there, you could have a big problem.

Other defenses include showing that the police conducted an illegal search. Officers, for instance, may have lacked the warrant to search your apartment or probable cause to search your vehicle.

Another defense is the lack of evidence of control. If police search an apartment and drugs are found stashed in the living room where five people are gathered and they arrest everyone, you can argue that not everyone had control over the substance; let alone knowing that it was there (unless they’re all partaking of it).

Skilled & Compassionate Advocacy

If you’re involved in a constructive possession situation when it comes to illegal substances, you need to seek legal counsel and representation immediately. The charges you face can be severe, especially if the controlled substance is not minor marijuana quantities.

Call me immediately at Walker Law LLC. I will listen to your story, investigate the circumstances, and prepare a strong defense to obtain the best result possible while protecting your rights every step of the way. I proudly represent clients in criminal cases throughout St. Louis and St. Charles counties. I will give your case personalized, compassionate attention.