Can a person be not guilty of illegal drug possession even though he’s found with illegal drugs?

People often mistakenly think they are automatically guilty of possession of cocaine, marijuana, or another drug, simply because they are “found with them.” However, such is not always the case. So, before you plead guilty for a scenario such as this, call Greg Smith and associates now at 801-651-1512, so you can find out if the State can even convict you (the case against you may have to be dismissed). The State must prove that you intended to use the drugs as your own.

For example, a mother may find drugs in a child’s room, and pick them up. She clearly has them in her hands, but is she innocent? Let’s assume he has no intent to dominate and control them for their illegal purpose. Cops seize drugs off people every day, yet they don’t get charged with illegal drug possession, why? This is a difficult concept, but the Utah Supreme Court has done a great job breaking this down in State v. Fox, 709 P.2d 316.

The Court said that a conviction for possession of a controlled substance with intent to distribute requires proof of two elements: (1) that the defendant knowingly and intentionally possessed a controlled substance, and (2) that defendant intended to distribute the controlled substance to another. The Court noted that “actual physical possession is not necessary to convict a defendant of possession of a controlled substance.” In other words, if a drug dealer intends to sell the drugs that he has in his basement, he still “constructively possesses” those drugs even if he’s in another country on vacation. Why? Because he still has control over the drugs. In other words, “where the contraband is subject to to the defendant’s dominion and control” he can still be found guilty.

But this is key: Even though persons “who might know of the whereabouts of illicit drugs and who might even have access to them, but who have no intent to obtain and use the drugs can not be convicted of possession of a controlled substance.” Okay, that’s worth reading again! In other words, if you’re at a home that gets raided, and you clearly knew drugs were in the house – but had no intent to obtain or use them – the charges could be dismissed! The Court wisely stated that “knowledge and ability to possess do not equal possession where there is no evidence of intent to make use of that knowledge and ability.” Many defendants do not know this, so they simply plead guilty.

The Court stated that in order to find that a defendant had constructive possession of a drug or other contraband, it is necessary to prove a link with the defendant and the drug to permit a reasonable guess that the defendant had 1) the power and 2) the intent to exercise dominion and control over the drug.

Now, when a mom holds drugs she’s found in her kid’s bedroom, is she “dominating” those drugs? Well, if she swallows them she is, but if she’s just holding them thinking, “My son’s an idiot!” she isn’t. And the cop that seizes drugs from people does not want to dominate them, but to get the properly disposed of (at least, if he’s a good cop!) In other words, the mom and the cop in these examples want to RID THEMSELVES of the drugs they possess (unless the State can PROVE otherwise).

And in order to proceed against you, the State must convince a judge that they have some basis to presume you were had both the power and the intent to exercise dominion and control over the drug. In other words, this cannot simply be assumed.

So, if you are found with drugs at a place you own or rent (or in your car, or at a campsite), that is not the end of the road for you. You see, although those are important factors that a judge considers, they are not by themselves enough to show that you are guilty of constructive possession, and this is especially the case when more than one person occupies the premises.

So, the Courts will look to other things, too: 1) Did you admit the drugs were yours, or make other “incriminating statements”? 2) When the cops showed up did you run to hide the drugs, or engage in other “incriminating behavior”? 3) Were the drugs found in a specific area over which you had exclusive control like in your bedroom (in your closet or drawer containing your personal clothing or other personal effects). 4) Was there a presence of drug paraphernalia among your personal belongings? 5) What is the proof the drugs were not planted on you?

In every case, whether a person has constructive possession of drugs is “a factual determination” which depends on the facts of each case. However, there must be facts which permit the reasonable guess that the defendant “intended to use the drugs as his or her own.” And in the above examples, the mother and the cop would most likely be not guilty.


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