What does it mean to be “in possession”?
Possession = Guilty? No.
In order to be found guilty of a drug crime, the State must prove to a Judge or Jury that you knowingly possessed an illegal substance.
Knowingly is also defined under the law. “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”
Possession is simple defined as “actual care, custody, control or management.” Its hard to know exactly what actual care, custody, control or management is. These words are not further defined so its up to the Judge or Jury to decide what that means. However, the courts have given us further guidance as to what is not possession.
How do they know that you know?
They law states that “mere presence” only is not enough to convict you. The most common example is a drug arrest during a traffic stop. Drugs are found some where and your in the car. If possession is control then generally the police believe that if you are in control of the car then you are in control of everything in it. What about knowingly? Can the State really prove beyond a reasonable doubt that you KNOW about EVERYTHING that is in a car your driving? People come in and out of our cars all the time, who knows what was left underneath your backseat months ago, right?
The law says that the State has to “link” you to the illegal substance in order to show that you knew about it. These links were described by Court of Appeals in Houston in a case Reese tried in 2010. The court said, “Texas courts have established several factors that may help to establish a link between the accused and the contraband, including whether (1) the defendant was present when the narcotics were found; (2) the contraband was in plain view; (3) the defendant was in proximity to the narcotics and had access to them; (4) the defendant was under the influence of narcotics when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) the odor of the narcotic was present; (10) the defendant owned or had the right to possess the place where the narcotics were found; (11) the narcotics were found in an enclosed place; (12) the amount of narcotics found was significant; (13) the defendant possessed a weapon; and (14) the defendant possessed a large amount of cash.” Bullard v. State, 01-08-00861-CR