To establish possession of drugs, or any other illegal item, prosecutors must prove three items beyond any reasonable doubt. That’s the highest burden of proof in the law.Two out of three is not good enough. In court, it’s all three parts of the definition of possession of drugs, or nothing.
As outlined below, each element of the definition of possession of drugs could raise a legal defense, especially in Georgia.
The public perception of drug possession has softened in recent years. Many people now believe drug possession is a health and safety issue, as opposed to a criminal law issue. Nevertheless, authorities continue to aggressively enforce drug possession laws. This disconnect gives a Marietta criminal defense lawyer several chances to beat drug possession ases in court.
Close Proximity
Many people believe that prosecutors need only prove close proximity to prove drug possession cases. This element may be the most important of the three, but it’s only one of three.
Georgia law broadly defines close proximity. For example, any person in the passenger area of a vehicle is “close” to any item in that vehicle, even if the item is not within arm’s reach.
However, the close proximity requirement also requires the state to produce the contraband item in court. Unless the police search and seizure was legal, the judge must exclude the item (exclusionary rule), making it impossible to prove this part of the definition of drug possession.
Frequently, officers stumble upon drugs during vejhicle stops or disturbance calls. In these cases, prosecutors normally use a search warrant exception to get around the exclusionary rule. Common search warrant exceptions include:
- Owner Consent: Property owners, or apparent owners (e.g. a driver who doesn’t legally own a vehicle) may voluntarily consent to property searches. Voluntariness is a rather nebulous concept. Usually, officers pressure owners into consenting. This tactic is legal to a certain extent. But at some point, officers cross the line.
- Stop and Frisk: If officers have reasonable suspicion (an evidence-based hunch) of criminal activity, they may detain individuals and pat them down for weapons. Prior to these searches, they usually ask defendants if they have illegal ietms. Suspects have a Fifth Amendment right to refuse to answer such questions, even if they aren’t technically under arrest.
- Plain View: If officers see contraband in plain view, they may grab it, assuming the law enforcement contact was legal, as outlined above. The [lain view doctrine often overlaps with the stop-and-frisk rule.
Police officers usually obtain search warrants in extended investigations, such as meth trafficking investigations.
Search warrants must be based on probable cause affidavits. An affidavit is a written, signed, and sworn document, not a phone call or email. Probable cause is a nebulous standard of proof, so it’s difficult to state what it is. However, we know what it isn’t. The uncorroborated word of a paid informant is usually not probable cause.480Actual Knowledge
In some cases, prosecutors must only establish constructive knowledge (should have known) in criminal cases. But most possession cases require proof of actual knowledge.
Willful blindness is not a defense in these cases. If Ben sees a baggie containing a white powdery substance hidden under a car seat, that substance probably isn’t baking soda. Ben knows that substance is cocaine, whether he wants to admit it or not.
However, Ben is on to something. Actual knowledge usually requires a line of sight. If Ben doesn’t see the baggie under the seat, he most likely does not possess it for criminal law purposes, even though he’s literally sitting on it.
Furthermore, general knowledge is insufficient. If Ben knows that something illegal is in the glove compartment, but he doesn’t know what that something is, the state cannot prove actual knowledge beyond a reasonable doubt.
The same principle applies to many illegal pornography possession cases. Common examples include thumbnail images which are invisible unless enlarged or images that go into a spam filter. The defendant does not possess these images even though they’re on the computer.
On a related note, the pleadings must match the proof. Many street dealers cut powerful narcotics, like heroin, with less-powerful narcotics or even inert substances. As a result, that substance is not “heroin” but a mixture of heroin and something else. Alternatively, the heroin content might be below five grams, or whatever threshold the state established.
Variance issues are relatively easy to fix, if prosecutors are on their toes. Sometimes, however, prosecutors are too busy to notice such minor discrepancies until it’s too late to do anything about them.
Exclusive Control
In criminal court, only one person can “possess” an item. There’s no such thing as co-possessors. Therefore, the state must prove, once again beyond a reasonable doubt, that the defendant exclusively controlled the drugs.
Usually, the key to creating reasonable doubt is spinning an alternative narrative. A DUI collision is a good example. Frequently, a credible eyewitness did not see the defendant behind the wheel, making the “driving” element of a DUI difficult to prove.
That’s especially true if more than one person was in the vehicle at the time. A Marietta criminal defense lawyer must simply point out that either occupant may have been behind the wheel at the time. An unreasonable alternative narrative (the driver ran off or a little green man from Mars drove the car) usually doesn’t hold up in court.
Similarly, exclusive control of drugs is difficult to prove in vehicle possession cases, if more than two or three people were in the car, and house party possession cases. If Paul was in the back seat and a baggie of drugs was in the glove compartment, Paul didn’t have exclusive control over those drugs, even if it was “his” property.
If a Marietta criminal defense lawyer can create a reasonable doubt as to exclusive control, or any other element of possession, the defendant is in the driver’s seat during plea negotiations. In these cases, a favorable resolution is just around the corner.
The definition of possession of drugs is very complex in Georgia. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
