Skip to main content

Am I responsible for illegal materials left in my house if theres no evidence I used/touched/viewed them?

Erie, PA |

I let a friend of a friend to sleep on my couch and I later found out that without my knowledge he had kept marijuana in his suitcase while he was staying here. This got me thinking, what if a bag of marijuana had fallen out and been left under my couch? There would be no way to prove I knew it was there, but also no way for me to prove that I didnt. Or waaaay worse, what if he had left a cd full of child pornography on my coffee table? I know this is hypothethical but its been driving me crazy to think how vulnerable I might have been!

+ Read More

Attorney answers 2


Pennsylvania courts recognize a doctrine called "constructive" possession. Under that doctrine, you will be deemed to be in possession of contraband materials so long as you are capable of exercising dominion and control over them. That's why I'm in "possession" of items that are in my house, even when I'm at work, (or in my safe deposit box, my car, my luggage, etc.)

Constructive possession doesn't ACTUALLY shift the burden of proof onto the defendant, but the simple reality is that proof that contraband was in your home is strong evidence that you knew it was there and, in light of that, there will be an INFORMAL shift of the burden on to you to explain how the contraband got there, why you didn't know about it, why you couldn't have known about it, etc.

That can be a problem for a lot of defendants. For instance: why did your friend bring marijuana in his suitcase to your home, if he didn't smoke it there? And if he did smoke marijuana while he was in your house, how could you have not known about it? Wouldn't his behavior and smell tip you off, even if he didn't smoke in your presence?

In short: it's important to be careful who you let in your home, and it's important that you know what they're bringing with them when you do. If you believe that you may be exposed to civil or criminal liability as a result of your friend's stay, contact a local criminal defense attorney to plan your options.

My comments are provided for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications through Avvo should be taken as legal advice for any individual case or situation. The information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. Lawyers are licensed to practice on a state by state basis; do not act on information contained on this website without first speaking to an attorney licensed to practice in your state.


Most, if not all state penal codes require a "culpable mental state" in addition to the act of possessing contraband. Generally, not only must one be in "possession" (care, custody, control, management) of contraband, the person must "know" they are possessing the contraband. Other culpable mental states may apply but knowledge is the most common. Your examples present a scary problem. Even though you did not "know" the marijuana (or child porn) was in your house or car, you sure-as-shooting could be charged with the crime. A police detective would sure wonder why you didn't know marijuana was under your couch or child porn was on your coffee table. You'd have quite a bit of explaining to do. The best practice? Know who (and what) is coming into your house and getting into your car. Protect yourself from the poor judgment of others.

Criminal defense topics

Recommended articles about Criminal defense

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer