Written by attorney Allen Rust Knox

Defending Drug Cases in Georgia: Joint-Constructive Possession.

If you've been arrested for "possessing" cocaine, marijuana or other drugs that you had no knowledge of, you are not alone. Many people are arrested in Georgia for drugs they did not actually possess; they may have not even known that the drugs were there. However, drugs were found in an automobile or residence and the person happened to be present at the time. In these cases it is a common police tactic to arrest everyone if nobody claims the dope. This does not mean that you are automatically guilty. Your defense starts with an understanding of what it means to "possess" a substance.


First, it is important to point out that "possession" does not mean ownership. You can possess someone else's dope. If you are holding drugs for somebody else, the law says you are guilty of possessing them. Moreover, if someone else is holding your drugs, you still can be convicted of possessing the substance if the State can prove you knew that the drugs were present and you intended to get them back from the holder in the future. This is called joint-constructive possession. This is the legal theory under which multiple persons are arrested and prosecuted for possessing a single quantity of dope.


The law defines four kinds of possession. First, there is actual possession; that is when drugs are in your direct control (such as when they are in your pocket). Next, there is constructive possession; here the law says that you are in possession of a drug when you know where it is located (e.g., your dresser drawer) and you intend to exercise physical control over it in the future (e.g., you're going to smoke it later). Possession can also be sole (by one person) or joint (by two or more persons). Therefore, joint-constructive possession means that multiple persons know that the drug is present (e.g., marijuana lying on the coffee table in front of them) and they intend to regain some level of control over it in the future (e.g., they are going to pass a joint around later).


The presence of a quantity of dope near your person may be sufficient evidence to warrant your detention and/or arrest. This is called spacial proximity. Spacial proximity is sufficient to justify an investigative detention of your person. It may even be enough to support probable cause for your arrest. However, it is not sufficient to support a conviction for drug possession. The State of Georgia will have to show something more than your mere "spacial proximity" to the dope in order to convict you of this crime.


Joint-constructive possession cases are circumstantial evidence cases. The jury is asked to conclude from a review of the circumstances that you knew the dope was present and intended to exert control over it. Spacial proximity is one of those circumstances. Other circumstances that may be pointed out to the jury in the State's attempt to convict you are (1) an odor of the substance eminating from the area; (2) the visiblity of the substance (i.e., it was within your line of sight or plain view); (3) you were nervous, evasive, untruthful, etc. Circumstances such as these combined with spacial proximity are sufficient for a jury to find you guilty of possessing dope, even if in actuallity you didn't know the substance was there.

Although circumstantial evidence is sufficient to convict, a conviction on circumstantial evidence is only authorized where the evidence excludes every other reasonable possibility except for your guilt. If there are other reasonable explanations for the circumstances, the jury must acquit. That's where you will most likely be able to defend against the charge.


The vaste majority of you who are reading this have already been arrested and are now out of jail on bond. However, it is still not too late to assist your attorney in your defense. First, you can get a drug test. Even if you are concerned that you may test positive for the substance, you can still get the test and find out. If you do not pass the test, you do not have to provide it to law enforcement. If you pass the test, your lawyer may be able to use it to help your defense. Sometimes prosecutors will even dismiss a possession charge when presented with a clean drug test.

You cannot wait too long after the arrest to be drug tested. Otherwise, the test will be invalid because you could have waited until the drugs were out of your system to take the test. As a general rule, marijuana will stay in the body up to 30 days. Your bodily fluids will only test positive for cocaine or methamphetamine for 48-72 hours (longer if you are a habitual user). Therefore, these tests must be taken as soon as possible if they are going to help you at all.

Beyond taking a drug test, there are other things you can do to assist your lawyer with the defense of your case. First, don't talk to anybody but your lawyer about the case. REMAIN SILENT. Don't discuss the case with anyone other than your lawyer. It is particularly important not to discuss the case with the people that got arrested with you or their friends or family. When the case goes to trial, friendship will mean nothing. If your friends have been charged and they know something about you that will help them, they are most likely going to use it. You minimize the possibility of this happening by refusing to talk about the case with anyone but your lawyer.

Next, go over the State's case with your lawyer. At some time during your case your lawyer may want to sit down with you and go over the evidence. If he does not request a meeting, you need to request to see him. In this meeting, you should go over all the police reports in the case to determine what circumstantial evidence the State may attempt to use against you. You may know of other reasons for the existence of this evidence. For instance, if the report says you were unusually nervous, it may be that you have a documented nervous condition. Many people suffer from anxiety disorders. If you were already diagnosed with an anxiety disorder, your attorney needs to know this information in order to prepare for your defense. Your attorney will also need to know who diagnosed you with this condition and how to contact them.

Another example of information that you could provide concerns the actual visibility of the dope. Officers routinely report that dope was found in "plain view". Prosecutors then argue that you must have also known it was there because it was clearly visible to anyone in the area. However, law enforcement officers often overstate this "fact." For instance, it may have been found in the floorboard of a car in the middle of the night Maybe the officer was using his flashlight to search the vehicle when he found it. You may also know that the dome light in that vehicle was not working when the officer located it with his flashlight. These facts are probably not going to be included in the officer's report. Therefore, the only way that your attorney can prepare to defend against this allegation is for you to tell him about the circumstances that lead to a conclusion that the dope wasn't in plain view. Meeting with your attorney and going over the evidence is a crucial part of your defense.

Finally, if you do have information about the actual possessor or owner of the drugs, now is the time to tell your attorney about it. In this instance, the information cannot be used against you; your conversations with your attorney are confidential. Your attorney can consider this information and decide how to use it in your defense. He may decide to pass this information along to the prosecutors in plea negotiations on your case. Again, this cannot hurt you; it can only help. Plea negotiations are also confidential; the information cannot be used against you. The only exception would be if you said something under oath at trial that was different than the information that was provided to prosecutors in plea negotiations. In that case. the prosecutors can present the information in order to impeach you (i.e., show that you are not believable) on the issue.

Again, being arrested for joint-constructive possession of a controlled substance or marijuana does not automatically mean that you will be found guilty. Each case must be evaluated by an experienced attorney to determine how strong the circumstantial evidence is against you. Therefore, the number one thing you can do to help with your defense is cooperate with your attorney. If you truly did not know the drugs were there, or you just discovered them when your friend threw them to the ground as the police were approaching, you need to tell your lawyer about it.. Remember, if your attorney does not know about it, he cannot use it in your defense. You must talk with your attorney in detail about the case at least once. Moreover, don't wait until right before the trial to talk to your lawyer. If you wait to long, your attorney may not be able to follow up on the information you provide him.. If so, that information is useless.

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