Can I be charged with possession for being in the same car or house as drugs or a firearm?

Yes, you can be charged with possession or possession with the intent to distribute under the theory of constructive possession.  But whether the Commonwealth can prove the case at trial, let alone whether there is probable cause for the charge, is a different matter.  There are two general theories of possession: actual and constructive.  Actual possession is when you physically have drugs on your person, such as in your pocket.  Constructive possession has to do with whether you had knowledge of the drugs (or a firearm) and the ability and intent to exercise dominion and control over them.  With constructive possession, the Commonwealth has to point to other information to link the contraband to a particular person.  For example, if drugs are found in a car and you are the registered owner or if drugs are found in a bedroom during the execution of a search warrant and your mail, ID, and other personal belongings are in that bedroom.

If you have been charged with possession or possession with the intent to distribute under the theory of constructive possession, the first question is whether there is sufficient probable cause.  The mechanism by which you would challenge the probable cause determination is with a motion to dismiss.  It is well understood that “mere presence” near drugs (or a firearm) is not enough.  There would have to be other circumstantial evidence that tie you to the drugs (or firearm).  A common circumstance in which you might have a basis to challenge the probable cause decision is if you are in a car that you have no ties to and drugs or other contraband are located within it but not near where you are sitting.  Another is if a firearm is located within a car that has four passengers and the Commonwealth charges everyone regardless of where each passenger is sitting.

If a judge determines that there is sufficient probable cause for constructive possession, then the question is whether the Commonwealth can show enough links between you and the drugs/firearm (or the location where the contraband is found) to find you guilty at trial.  With a trial, the standard is beyond a reasonable doubt, which is far higher than probable cause.  If there is insufficient evidence, then there is a good chance that you could receive a not guilty by a directed verdict after the Commonwealth rests its case.  It is vital that you work with a lawyer who has experience dealing with constructive possession cases and is prepared to take the case all the way to trial if the judge denies the motion to dismiss.

Michael Thaler, Esq.

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