Possession Crimes in Georgia - Understanding the Law

Posted by Megan GroutApr 29, 20240 Comments

Types of Possession
Possession of Drugs, Weapons or Stolen Goods

Charged with Possession of Drugs? Weapons? Stolen Property?

What You Must Know About Georgia Law

     When it comes to criminal charges, one of the most common legal trouble comes from "possession" of something you are not supposed to have. This could be possession of drugs, possession of weapons, possession of stolen property or something else that is illegal. In any kind of possession case, is extremely important that you understand what exactly the concept of "possession" means, because you can be charged and even found guilty of possessing something even if it wasn't on your body when the police stopped you. The first step to defending your case is understanding how the state is planning to prosecute you. What theory of possession are they going to use? How will they prove it?

     Georgia law allows for basically three different "theories" of how someone can be consider to legally possess something. Before I explain those three kinds of possession, it is important to understand that possession and ownership are NOT the same thing. You don't have to be the owner of the gun or the drugs in order to possess them. What matters is whether the police believe you had possession of the item in order to criminally charge you.  So in most cases, arguing that someone else owns the weapon or drugs or stolen item is not going to be enough to defend the case. Instead, you need to consider how the State is going to prove you possessed the item in question, and how you can defend against those charges.

Actual Possession

     The most common type of possession is "actual possession" and it's the one most people think of when we talk about this concept. It means you had immediate physical control over the drugs, weapon, stolen property, etc. So this usually means that the item was found on you - like in your pocket or the purse you are holding. These are cases where arguing that you didn't actually have possession is very difficult, since the object is found on you, and often this is captured on body camera by the police. Instead, your lawyer will look to whether your 4th Amendment rights were somehow violated during the search of your person. If the court finds that your rights were violated, that the evidence that you actually possessed may be thrown out. Other arguments might be that you were unaware that the item was unlawful. An example might be in the case of stolen property, where even if it was found in your possession, you had no idea (nor should you have had any idea) that the item was stolen. 

Constructive Possession

     There are many situations where you can be charged for possessing something illegal even though it was not on your body (or in your purse that's on your shoulder) at the time the police encountered you. In Georgia, the law considers that you have "constructive" possession of something when you have knowledge of and control over something, even if it isn't on your body. Examples of this might be if the police find a backpack in a house where you don't live, but the backpack has many items of identified as yours, along with some illegal items. The police can charge you with possession of those illegal items even though you didn't have the backpack on you at the time the police found it. Another example is when illegal items are found in a car, maybe in the glove compartment, the console or under the seat. Even though you didn't have the item in your physical possession, the State may allege that you had knowledge and control over the item if you were in the car at the time it was stopped.

     A big part of a case where the State is arguing you had constructive possession is proving that you had knowledge and control of the item. This is where having a good defense attorney can help you to poke holes in the State's attempt to argue you were aware of the illegal item. Other good defense arguments can center around someone else having exclusive control and knowledge over that item instead of you. For example, in the case of the backpack, you could show that you lent that backpack to someone else and they were most likely the ones who placed the illegal items in it. Likewise, if you only just got into a car where illegal items were discovered, this can help you defend any charge that suggests you had knowledge or control over the items that were found.

Joint Possession

     Joint possession is the idea that more than one person can possess a thing at the same time. We usually see the concept of joint possession combined with constructive possession - meaning multiple people have knowledge and control over an illegal item, and all of them can be charged for it. A basic example of "joint constructive" possession is when the police raid a house for drugs, many people are charged with possessing the drugs found in the home. The State is going to argue that you had some knowledge and control over the drugs, as did other people in the house, all at the same time. We also see "joint constructive" possession cases arise when police find something illegal in a car, and decide to charge multiple people riding in the car with possession for that illegal item. Your defense attorney is going to explore different options for defending these cases, as they might include any 4th Amendment search issues, showing how you could not have had knowledge or control of the drugs, or other possible defenses. 

How do I know what kind of possession the State is alleging?

     The warrant or other legal paperwork from an arrest doesn't usually list out what kind of possession the police believe was involved in your case. Instead, this is something that you or your lawyer will be able to determine by reviewing the facts and the police reports. 

Do I need a lawyer if my co-defendant is going to take the charges?

     Yes. In cases of joint possession, where two or more people are charged with possessing something, I often have people tell me that some other co-defendant is going to take sole responsibility for the illegal items. This is not something you can count on happening. Often times, when people find out how serious the punishment is going to be, they change their mind about agreeing to take the charges. You must have a lawyer helping you to plan a defense from the beginning, regardless of what promises your co-defendant made. If you sit back and wait for someone else to claim sole possession of the items, you may end up in a weak position with them pointing the finger at you. This is why it is always a good idea to get a lawyer from the beginning, no matter what other people are promising you.