Football, Tail Gating, Beer Pong and the Police
As summer winds down, I start to say good-bye to some of my favorite hobbies including tubing on the Comal and Guadalupe, sailing on Canyon Lake, and the end of summer rec leagues. But I also get to say hello to the return of Football, The League, and the return of cooler weather (and by that I mean anything less than this one-hundred degree heat). Nothing beats drinking a cold one with your favorite friends, heckling your rivals, winning the beer pong championship, and eating tail-gate bbq. Pretty much nothing beats this time of the year…except the Police.
Just like deer season attracts the avid hunter, football season attracts the law. Police activity is an all-time high when it comes to drugs, alcohol and tobacco use. The statistics say this is due to an increase in alcohol and drug related accidents that have led to injuries and fatalities in our community. As the law juggles a variety of methods to curb these types of incidents, we can all agree that their plan for prevention includes increasing arrests and charges of suspects. Unfortunately, the college co-ed is included in this list of suspected persons.
The college co-ed can expect the police to be investigating, searching, citing and arresting for drug-related offenses (such as possession of paraphernalia, marijuana, ecstasy, cocaine, and illegal prescription drugs like xanex) and alcohol related offenses (such as MIP, open container, public intoxication, boating while intoxicated and DWI / DUI). These offenses all share a few things in common: They are illegal (even if we don’t want them to be) and they require some form of possession or operation by the suspect.
So what is possession? We all remember Super Troopers where the State Police pull over the three college kids who are rolling dirty with a baggie of marijuana and a fat sack of mushrooms. In this scenario, there is a driver, a front seat passenger and a back seat passenger. Before they are pulled over, the front seat passenger has both drugs hidden on his person, and all three individuals are sharing a joint. The joint in plain view would give the law the reasonable suspicion necessary to search the college kids in the vehicle and all three could be charged with possession of the joint.
But what about the weed and shrooms? It all comes down to where the weed is found. In Texas, you can be charged with a possession offense if you knew or should have known about the drug or alcoholic beverage. And the law can get to the arrest by either physical or constructive possession. Physical possession is where you physically have the contraband on your person. Constructive possession is where you have some degree of control over the marijuana even if its not on your person.
Many people think that they are safe if they ditch the sack of weed, chug the bottle of beer, eat the mushrooms. Lets ignore the joint, and assume that the Super Troopers effectuate a lawful stop based on a traffic violation instead, but can smell the burnt odor of marijuana when they walk up to the car. They are going to conduct a search of the vehicle based on the reasonable suspicion that marijuana is in the vehicle and they are going to find the marijuana and mushrooms. Watch in the various fictitious scenarios how possession can change based on where the marijuana and mushrooms are found.
Scenario #1: Weed and Mushrooms are found in the Front Seat Passenger’s jeans. More than likely, the Passenger in the Back and the Driver will be released and not be arrested since the drugs were in the actual physical possession of the front seat passenger. The Front Seat Passenger will be arrested and charged.
Scenario #2: Weed and Mushrooms are found under the Front Seat Passenger’s seat. All three individuals could be charged with constructive possession of the drugs. It can be said that because the Driver owns the vehicle he is in constructive possession of all the contents in the vehicle. As well, the Front Seat Passenger and Back Seat Passenger could be accused of constructive possession because they are in arm’s reach of the drugs.
Scenario #3: Weed and Mushrooms are found in the glove compartment of the Vehicle. The Passenger in the Back will most likely be released because he was not in actual or constructive possession of the drugs. However, the Front Seat Passenger may be in constructive possession because he has access to the glove compartment. As well, the Driver is in constructive possession because he has ownership of the vehicle.
Scenario #4: Weed and Mushrooms are found in a girl’s purse who is not in the car. This is a curve-ball situation where a friend accidentally leaves something in your car and it contains illegal contraband. The driver and passengers may not know about the illegal contraband, but they could be in a difficult situation if the girl does not own up to the contents of the purse. The law could charge each person with constructive possession of the contents of the bag.
Let’s apply our understanding of possession to two real life cases:
Scenario #1: “George", a UTSA student, went to a college party at an apartment complex earlier this year. George is under twenty-one, and has never consumed any alcohol in his life due to a lifestyle choice. However, George is not against his friends, who are also underage, from consuming alcohol. There are over fifty people at the apartment party, sitting in the hall just outside the front door, inside the kitchen, and outside on the patio. There is beer and alcohol readily available inside the kitchen, and almost everyone has a drink in their hand. As the music plays from a stereo in the background, George is conversing with some friends in the living room and kitchen areas. In an instant, a team of San Antonio Police arrive at the door based on a noise complaint and enter the location. They proceed to line everyone up against the walls, and begin checking identification. By the nights end, fifty people have received citations for minor in consumption, minor in possession, and/or open container. George is one of the last people cited. George pleads with the police that he does not drink and that he has no alcohol in his system. Two of George’s friends (who were cited) even tell the officers that he has not consumed or possessed any alcohol. The SAPD officers still cite George with a minor in possession violation based on his mere presence around alcohol that was readily available to him. George is now fighting his citation and is set for a jury trial.
Scenario #2: “Matt" is in his late teens. Matt is driving in San Antonio and has just purchased an eighth of shwag from a friend. Matt places the marijuana under his seat in a sandwich bag. It is late at night, and he is almost home. Matt is driving on familiar roads and becomes aware of a police officer parked on the side of the road with his lights off. Matt knows this is a speed trap, and becomes aware that he may have been speeding. Reacting to the situation and understanding that he may be stopped for speeding, Matt grabs the bag of marijuana and tosses it out the window as he is driving past the officer. Sure enough, the SAPD patrol officer turns on his lights and pulls Matt over. Matt is shaky, but he thinks he is being pulled over for speeding because the officer did not stop to investigate for the bag. When the officer gets to the window, Matt’s mouth drops in disbelief. The officer is holding the bag of marijuana. The officer proceeds to explain to Matt that as Matt tossed the marijuana out the window, the wind caught the bag and blew it onto the Officer’s patrol car window. The evidence of the crime landed right on the Officer’s window. Matt was arrested for possession of marijuana and ultimately pled to deferred adjudication.
These examples are just to teach you about what “possession" is and can be. Remember that there are millions of situations that can arise when you are participating in illegal activity or around illegal activity. The bottom-line answer to avoid a possession offense is to not carry or consume contraband and to walk-away from a situation where contraband is accessible to you. If you have been charged, your best defense will be to establish that you did not know nor could have known about the contraband and that you did walk away or attempted to stop the crime.
*Blakely I. Mohr is a licensed Attorney in the State of Texas, with his primary office in downtown San Antonio in the Historic Milam Building. Mr. Mohr is a member of the Texas Criminal Defense Lawyer’s Association, San Antonio Criminal Defense Lawyer’s Association and the legal committee for the National Organization for the Reformation of Marijuana Legislation (“NORML"). This blog is not legal advice. If you have an actual legal problem, please consult with Blakely I. Mohr at (210) 212-7589 or [email protected], or another licensed attorney.
*If any story herein is true, changes have been made to names of the Defendants and some of the facts in order to protect the privacy of the individual and maintain the attorney-client privilege.