Proving Drug Possession: "Actual Possession" is not always required

August 31, 2012

Every drug crime requires the element of "possession". In fact, drug crimes rank high on the list of frequently occurring felony cases in Michigan. Drug crimes include: "possession" or "possession with intent to deliver" marijuana, heroin, cocaine, MDMA or analogues.

Drugs.jpg

Whenever someone is charged with any drug crime, our criminal defense attorneys will question whether the accused legally possessed the alleged drugs.

Michigan Courts Define Possession In Criminal Cases

In Michigan, a person must knowingly and intentionally possess an illegal drug to be charged with possession of a controlled substance under Michigan's drug possession statute. But what does that mean?

The courts in Michigan consolidate possession into two categories

1. Actual possession: an individual has drugs on their person (pocket or shoe)
2. Constructive possession: individual has the right of control and dominion over the controlled substance



Actual possession is simple. If the drugs are in a person's pocket, that person possesses the drugs. But what if the drugs are found in a home where multiple people are present? What about in a car with more than one occupant? What if the person was unaware the drugs were in the car? Determining whether or not the individual had a right of control or dominion over the drugs, or over the premises (car, apartment, house) in which the drugs were found, is critical in these situations. However, an individual's presence in the same house or automobile as the drugs is insufficient to establish possession; a connection between the drugs and the individual must be found as well. When a person is merely present at a place where drugs are found or is an innocent bystander, our firm will argue that there is insufficient evidence to establish the element of possession.

Michigan Courts broadly interpret possession:

People v Nunez (2000): In this case, police entered a home and discovered, along with several occupants, a large stash of cocaine. Although Mr. Nunez didn't have the cocaine on his person, he was charged and convicted of possession of cocaine. The police arrived at their conclusion by observing the apartment and its contents. Mr. Nunez had a key for the apartment and stayed at the apartment most of the time. His name was also found on bills within the apartment. The connection between Mr. Nunez and the drugs was straightforward in this case.



People v Meshell (2005): In this case, police observed a man emerging from a garage in which they later discovered methamphetamine. Upon entering the area, police noticed a strong chemical odor coming from the garage. Mr. Meshell was the only person in the area of the garage and when police ran his record, they discovered past issues with methamphetamine. Because Mr. Meshell had past issues with meth, it was obvious that he knew the smell. He was also the only one in the area at the time police observed him exiting the garage.

People v McKinney (2003): In this case, police entered a home and discovered a large amount of cocaine. Police found crack in drawers containing women's clothing, and linked the drugs to Ms. McKinney because she was frequently staying at the apartment. Drugs were also found within the pockets of women's clothing in the bedroom she was sharing with the owner. By using the drug's location as evidence, the police were able to successfully charge and convict Ms. McKinney of possession of cocaine.

As you can see from the cases above, police can use the surrounding circumstances to establish an individual's possession of a controlled substance:

1. Any past drug-related criminal activity
2. The smell of the drugs, particularly marijuana
3. Whether or not the person was alone
4. Utility bills for the home in which the drugs were found


Contact the Abdo Law Firm immediately if you are being investigated or charged with any drug crime. Do not make common mistakes such as talking to the police or consenting to a search, without first consulting an attorney. Refusing consent to search does not give the police probable cause.



These are some of the issues that our criminal defense attorneys will explore when a client is charged with a drug crime:
1. Was the search valid?
2. Were the drugs in close proximity to the person charged?
3. Did the police advise the accused of his or her rights? (Miranda)



4. What statements, if any, were made at the alleged crime scene?
5. Were any witnesses present to support the defense?
6. Did the police find any forensic evidence? Fingerprints? Identifying marks?

Example of an identifying mark

Thumbnail image for Blue-Magic.jpg


7. Any recent drug use by accused or other present parties?
8. Does the accused have a criminal record?

The ABDO LAW FIRM believes that your rights matter! Let our firm help protect you!

FREE PHONE AND OFFICE CONSULTATION
Calls Forwarded To Mobile Phone 24/7/365
Call the ABDO LAW FIRM 24-Hour Phone: (586) 412-5555

Credit cards.pngAV Peer Rated.png