Arrested for Drug Possession

Arrested for Drug Possession?

The Shocking Truth About Georgia Law

     Did you know that the police have three different ways in Georgia to allege that you are possessing drugs? Did you know that you could be arrested for drugs found in another person's house or car? Georgia laws regarding drug possession can come as a shock to many people. I'm going to break it down for you so you can better understand it.  

Actual Possession of Drugs

     "Actual" possession is the kind of thing that most people think about when they think of the word possession. It's when you have direct contact or control of something. Easy examples of this would be if drugs were in your hand or in your pocket. And it's pretty easy to understand why the police would arrest you if they caught you with drugs in that scenario. But things get more complicated when you start looking at other kinds of possession.

Constructive Possession of Drugs

     "Constructive" possession has nothing to do with construction. Constructive possession means that you don't currently have that object in your physical possession but you still have control over that object. That control can be based on you legally owning an item and it's contents. Meaning, for example, it's in your car. Even if you're not in your car at the time the drugs were discovered, the police will say you have control over the items in a car that you own, so you are presumed to have constructively possessed the drugs in the car. Likewise, if the police search an apartment with many roommates and drugs are found in the bedroom that is yours, you can be charged with constructively possessing the drugs in your room, even if you aren't home when the search is conducted. Keep in mind that you don't have to be the legal owner of thing to have constructive possession over it. If you borrow a car and drive it for a while, the police can presume you have control of what it inside. Likewise, you may not own a home, but if you're staying there, the police can presume you have control of some or all of the house. (Of course, you may have very good defenses to what the police are presuming, and I'll talk about that down below.)

     Constructive possession can get even more concerning when drugs are found in a car or a home that is NOT yours - even if you never stayed in the home overnight or borrowed the car. We see often see cases where a bag is found with items in it that identify the bag as being owned by a particular person - things like credit cards, a wallet or mail. This could be in a car owned by someone else that you rode in, or found in someone else's home where you accidentally left it, during a search. If the drugs are found in the bag that has your identifying information in it, this can lead the police to arrest you for the drugs even if you aren't in the home or car when it is searched. You will usually see that the police will take video or photographs that establish what else they found in the bag during the search to try to establish that the bag (and drugs inside) are yours. 

     Also remember that houses and cars are not the only scenarios where constructive possession can apply. There are many other examples. Drugs found in a bag identified as yours at the airport - even if you checked the bag and aren't anywhere near the bag when it's searched, can result in your arrest. Drugs found in your locker at school will likely be considered yours even if you weren't at school on the day they were found. 

Joint Possession of Drugs

     The third kind of possession is "joint" possession, meaning more than one person can be presumed to possess a single item. This means two or more people can be arrested for the same drugs. This can also be called "joint constructive possession" because normally the scenarios where joint possession applies are not ones where there has been actual possession. (In other words, if the drugs are in the actual possession of one person, in their hand or pocket for example, it's less common that others will also be arrested for those particular drugs.)  One obvious example of joint possession is if you are married and drugs are found in a car or home that is owned by both of you. Both you and your spouse could be arrested for the same bag of drugs.

     But people do not need to be married for joint possession to apply. If a bag of drugs is found in a car, the driver as well as the 3 other friends riding it could all be arrested for the same bag of drugs. Or if drugs are found in a home during a party, the police have the option to arrest everyone in the home for those drugs. Now, practically speaking, you won't usually see the police arresting 50 people for one bag of drugs. The police will make their own decisions on who they believe they have probable cause to arrest based on their interpretation of how you have a connection to those drugs. 

Are There Defenses to These Arrests for Possession of Drugs?

     Absolutely! Simply saying "those aren't mine" isn't going to quite cut it, but there are good arguments that can be made. With any kind of possession arrest, the first analysis your lawyer will make is whether the police had the right to be searching where they found the drugs. You have rights under the 4th Amendment Constitution that prevent unreasonable search and seizure. Your lawyer can analyze the facts of your case and determine whether you may have a successful Motion to Suppress the drugs that were seized.

     Assuming that the police did perform the search legally, there is another legal doctrine called equal access. Your lawyer may be able to make an "Equal Access" argument. Basically, the defense of equal access is the argument that people other than you had access to the place where the drugs were found. If you can make that argument (and the judge/jury believes it) then they cannot prove that you had knowledge, control and ownership of those drugs. There is also the ability to argue that your co-defendant(s) in a joint constructive possession case had the actual ownership and control over the drugs. For example, if you were a passenger in the back of a car, and the drugs were found in the glove compartment, you might have a very successful argument that you did not jointly or constructively possession those drugs. 

     It is important to remember that sometimes police just choose to arrest someone even if they have a weak case. All the police need to establish for an arrest is probable cause. Probable cause is more than a mere suspicion, but only requires some reasonable suspicion that you committed the crime. The police aren't required to prove you guilty before they arrest you. The issue of guilt comes later as your case proceeds through the court system. It can take months or years. So, the smartest move is to hire an attorney immediately to start preparing your defense.