Can I be charged with controlled substance possession if someone else claims the drugs?
More than one person can be charged and convicted for possessing the same drugs or paraphernalia. But there are also circumstances where multiple individuals are present but only one — and sometimes none — of the people are guilty of unlawful possession.
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First, a brief legal foundation; then some examples for discussion.
Ownership Not Required
Police do not need to prove ownership in order to arrest and charge a person with possession of a controlled substance. Possession is the key element — either constructive or actual possession.
Actual and Constructive Possession
Actual Possession – typically involves drugs being held in a person’s hand, carried in their pocket, purse, or wallet, or otherwise in their direct possession and control.
The best attorneys understand that the effects of a criminal charge extend beyond the courtroom.
Constructive Possession – includes drugs that the person has knowledge of the existence and nature of the substance, and also has the ability and intent to exercise control over it.
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An Example: Sitting at the Kitchen Table
Consider the following hypothetical scenario:
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Three people sit around a kitchen table with a small baggie of cocaine in the center of the table. All three people intend to use some of the cocaine. One of the people purchased the drugs, and then brought them to the home where the other two people are waiting. Police enter the home (with consent of the homeowner) and see the drugs in plain view. All three people are arrested and charged. All three people admit that they were just about to use the drugs together.
Potential charges could include possession of a controlled substance, possession of paraphernalia, distribution, or possession with the intent to distribute.
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Possession of a Controlled Substance
All three people could be charged with possession of a controlled substance based on a constructive possession theory. All three knew about the substance on the table, knew that it was cocaine, and had the intent to use it.
Distribution or Possession with Intent to Distribute
The person who purchased the drugs is guilty of possession with intent to distribute or distribution of a controlled substance. But from a defense perspective, the important question is whether or not the evidence is sufficient to support the charge.
If nobody makes any admission or says anything to the police, the prosecution team may find that they have no evidence that identifies which individual purchased the drugs and/or brought them to the home.
Evidence that all three were sitting around the table with drugs in the center could allow inferences to be drawn sufficient to show constructive possession. But without more, a court would likely hold that the evidence is insufficient to support a conviction for distribution or possession with the intent to distribute.
Somebody Claims Ownership of the Drugs
Now, assume that one of the individuals claims ownership of the drugs and confesses to the police that he/she bought the drugs, planning to share them with friends.
This claim of ownership likely reduces or eliminates the possibility that the other two individuals would be charged with distribution. But that claim of ownership may not affect the evidence that the other two people knew that there were drugs on the table and had the intent to use them together.
In other words, in this scenario only one person is likely to be charged with distribution, but all three of them could be charged with and convicted of possession of a controlled substance.
A Different Example: Standing in the Kitchen
Now, assume a slightly different scenario.
All three people are standing in the kitchen near the refrigerator and sink. Nobody is sitting at the kitchen table, but there is a small baggie of methamphetamine sitting in the middle of the table. Police enter the home to execute a search warrant previously obtained based on probable cause. Each three individuals politely tells the officers that they are exercising their Fifth Amendment privilege against self incrimination, and that they will not answer any questions without first consulting with an attorney.
In this scenario, it is safe to assume that somebody brought the methamphetamine to the house and put them on the table. But without evidence beyond the mere existence of the drugs, police may not be able to charge anyone.
It is possible that all three individuals are intending to use the drugs, but without evidence of that intent it should be impossible for the prosecution team to prove their case.
Two Key Takeaways
Practical – Don’t do drugs. It’s bad for your health.
Legal – Exercise your Fifth Amendment rights and ask to speak with a lawyer if police want to ask you questions.
Finding the Right Criminal Defense Attorney
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