I'm Being Charged With Possession but I Wasn't Carrying Anything! How does this happen?

Here's a common scenario:

Joe and Bob are driving in Joe's car. There's a baggie of drugs in the center console between them. They're stopped for a traffic offense. The vehicle is searched and the baggie is found. Both Joe and Bob are arrested and later charged with possession of a drug. Now Bob is wondering, "how can I be charged with possessing something that was in someone else's car?"

The reality is, there are two types of "possession." There's ACTUAL possession, and there's CONSTRUCTIVE possession. Before we dive into that, let's take a look at an Arizona statute.

A.R.S. 13-105(34) & (35) define possessing and possession as follows:

34. "Possess" means knowingly to have physical possession (ACTUAL possession) OR otherwise to exercise dominion or control over property (CONSTRUCTIVE possession).

35. "Possession" means a voluntary act if the defendant knowingly exercised dominion or control over property.

That's clear, isn't it? Not really.... Let us dissect this law a bit more. To be found in possession of something, Joe and/or Bob must have knowingly had physical control over the bag. But it was in the center console, right? So that's not going to work for a prosecutor. Instead, the question becomes did Joe and/or Bob knowingly control the baggie? That's what the state has to prove beyond a reasonable doubt.

The first question is, did they know the bag was there?

The second question is, did either or both of them control the baggie? Were there fingerprints or DNA on the baggie from one or both of them? Was there any paraphernalia found on either of them that would suggest they were partaking in the contents of the baggie?

If Joe decides he wants to "take the charge" is Bob off the hook? In short? No. Not necessarily.The state will still likely move forward with a charge against Bob if they feel a jury isn't likely to buy Bob's story or Joe's confession. So, if you've found yourself in a similar situation, attorneys at Paradise Valley Law can help. We will consult with you on the facts of your case and help you make the most informed decision for you.