Can I be charged with possession if drugs were not found on me?

Asked over 2 years ago - Evansville, IN

I was at boyfriends when a search warrant was served.I had several possession charges but nothing found on me or in my purse.Well they said there was lipstick on tooter,And white bread tie in my purse that matched the bread tie on the baggy of meth they found.The meth was found in a drawer with womens underwear.Several other items were found throughout the residence.(pipes,marijuana,poss of water pills) I am the only one charged in this case.I have an extensive criminal history,and they have filed a habitual substance offender on me.Do I have a chance of beating this in trial?No utilities,no mail ,comes to me here.My license is not this address/

Attorney answers (3)

  1. Gregg Jason Stark

    Pro

    Contributor Level 7

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    Answered . In Indiana, a person can be found guilty of drug possession even if the actual drugs were not found on one's person. In such cases, a prosecutor will use a legal doctrine called "constructive possession" to attempt to convict such a person.

    Constructive possession basically means that if someone has both knowledge of the drugs as well as the opportunity and ability to maintain control over the drugs in question, the possession may be inferred. As a result, guilt can be upheld as a matter of law.

    In constructive possesion cases, the specific facts alleged can mean everything as to whether a conviction can be upheld. For example, I have had many cases dismissed where a passenger in a vehicle not owned by the person was prosecuted under constructive possession where drugs were found in the trunk of the vehicle.

    If the non owner of the vehicle was in control over the vehicle (driving), the facts of the case would need to establish that the driver knew of the drugs in the trunk and had the keys and/or the ability to retrieve the drugs in the trunk. If no control or right to control, there is no constructive possession even where knowledge of the drugs can be inferred.

    Therefore, where a circumstantial case exists within another's premises, it is the issues of 1.)knowledge of the drugs and most importantly, 2.) the ability and/or right to control the drugs within the premises that will ultimately answer the question.

    As these issues often depend on witness credibility and the specific facts as to whether someone had the intent and ability to maintain control over the drugs found, it is often only the ruling of a jury that can decide the issue in your favor if the judge believes an issue of fact exists as to your knowlege and ability to control the drugs in question.

    To sufficiently answer your question more completely it is usually best to contact an Indiana defense attorney who will usually be pleased to help you at no cost by phone. Good luck!

  2. Charles Joseph Michael Candiano

    Pro

    Contributor Level 20

    Answered . The evidence was found in an area which the prosecutor will ague was in an area over which you had custody and control and, by extension, constructive possession. It is sufficient to convict. If you take the stand, all of your prior felonies will come in.

    As long as the paperwork is there (the prior convictions are certified), the Habitual Offender Count is a done deal.

    You don't tell us the offense with which you are charged nor do you tell us the quantity of the drugs found or the proximity to a church or school so I cannot tell whether this was charged as a class A, class B, or a class C felony. In any event, you are looking at the potential for serving a very long sentence. You need to have a serious discussion with your attorney as to the likelihood of your prevailing versus the availability of entering into a plea agreement whereby the habitual offender charge would be dropped. That is a pretty much standard agreement as the prosecutor realizes they can always hold it over your head in any future prosecution. Good luck.

    If this information has been helpful, please indicate by clicking the up icon. Legal Disclaimer: Mr.... more
  3. Curtis Lamar Harrington Jr

    Contributor Level 20

    1

    Lawyer agrees

    1

    Answered . You can always be charged, even with circumstantial evidence, even weak circumstantial evidence.

    Hire an aggressive local criminal attorney without further delay.

    Don't take this lightly. On a good day, the DA can win on very very weak evidence if there isn't a bright lawyer opposing the DA.

    Take no chances......Hire an aggressive local criminal attorney without further delay.

    Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal... more

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