We often hear our clients say, “The cops and the prosecutor can’t prove the drugs were mine!” And many times they are 100% right, and the case will either get dismissed entirely, reduced, or the jury will find them to be not guilty.
After all, simply being near illegal drugs such as marijuana, meth, cocaine, ecstasy, heroine, etc. in Utah is not a crime. However, there is much more to it than that, and sometimes a person will get convicted for just being at the wrong place at the wrong time.
And Prosecutors can be all over the board in Utah when it comes to how they view such allegations of illegal drug possession and/or intent to distribute. For example, a prosecutor in Salt Lake may not handle the case the way a prosecutor from Ogden, Provo, Moab, Vernal, St. George, or Logan may. If the case gets turned over the feds, the matter instantly becomes a whole lot worse. That is why it is essential to hire an experienced defense team, which is very family with these types of illegal drug possession allegations, and how to properly defend against them such as Greg Smith and Associates, a criminal defense firm.
In these situations, often a car, or something else, is searched and illegal drugs are found, and the police arrest the person who just happens to be near the drugs when they were found. If the person is fortunate, the Utah authorities will not charge with intent to distribute, too, which could raise a simple class B misdemeanor to a felony.
Many feel that Utah and other states have very unfair methods when it comes to the prosecutor of illegal drugs. After all, there are traces of cocaine on many American monetary bills, and that makes it so that virtually any American could get charged with illegal drug possession, after all any measurable amount can theoretically be a crime. Let’s face it, drugs are everywhere, and so are people, yes, even innocent ones, which makes every person a potential “criminal”.
Many defendants in an illegal drug case in Utah invoke their right to remain silent, so all the State has is the fact that drugs were found somewhere near them. Let’s assume your name is John, and your car has just been searched, and drugs were found in your seat. You kept your mouth shut. So, does the state have enough to convict you? Well, many jurors would say no way, not a chance, but some jurors would convict you based on that alone, and even of possession with the intent to distribute an illegal drug or substance. The Court of Appeals would say something like this if you appealed.:
‘The evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Instead, the evidence only has to reasonably support the jury’s finding of guilt beyond a reasonable doubt.’ ” United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir.2004)
So, it really comes down to the jury. Well, sort of. Courts have also said this:
“. . . the Government must prove the defendant: (1) possessed the controlled substance; (2) knew he possessed the controlled substance; and (3) intended to distribute or dispense the controlled substance.” United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir.2000).
So, it is by far a slam dunk for the prosecutor.
So, what if drugs are found in your home while you are on vacation? Or what if you are a landlord, and drugs are found in your tenant’s home? Here is what Courts say:
“The possession of the controlled substance may be actual or constructive.” United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir.2004).
“[A] person has constructive possession of an item when he ‘knowingly holds the power and ability to exercise dominion and control over it.’ ” United States v. Lopez, 372 F.3d 1207, 1211 (10th Cir.2004).
So, if a person hid his illegal drugs by burying them deep in the ground, but still had access to them, he would be in constructive possession of them. However, if a person were at a party and illegal drugs were present, but he had no control over then, arguably, he would not be guilty of a thing, even if he knew they were there. This is because he would not have any power or control over them.
Here is where things get a big scary:
“Dominion, control, and knowledge, in most cases, may be inferred if a defendant had exclusive possession of the premises; however joint occupancy alone cannot sustain such an inference.” United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994).
So, if you alone live in a home, and drugs are found in that home, it may sort of be assumed that the drugs found there were yours, unless you can show you did not have exclusive possession of the premises. In our view, unless the State can prove that all the doors and windows were locked and fully secured at all times, there is simply no way to prove that a defendant had the exclusive control of the premises. Drugs are very, very easy to plant just about anywhere. After all, if prisons, which are patrolled by drug-sniffing dogs and guards cannot keep drugs off their premises, how is John Q. Public supposed to be able to?
Courts have also said this:
“To prove constructive possession when there is joint occupancy of a vehicle [in other words, two or more people are in it], the government must present direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the contraband. The government must present some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the … contraband.” United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir.1998).
So, at a minimum they should show that the illegal drugs were present, and the defendant knew they were there, and had access to them.
Here is what one jury instruction said in a recent trial involving the possession of drugs and intent to distribute in Utah:
Before you may find the defendant guilty of the offense charged in Count 1 of the Indictment, you must find beyond a reasonable doubt that he possessed a controlled substance.
The law recognizes two kinds of possession: actual possession and constructive possession.
“Actual Possession” is direct physical control, as by holding an object, or keeping it on or around one’s person.
“Constructive Possession” is indirect control, as by knowingly having the power to exercise dominion or control over an object although someone or something else may actually be holding it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it.
In a situation where the object is found in a place (such as a room or car) occupied by more than one person, you may not infer control over the object based solely on joint occupancy. Mere control over the place in which the object is found is not sufficient to establish constructive possession. Instead, in this situation, the government must prove some connection or nexus between the defendant and the object, and must offer evidence supporting at least a plausible inference that the defendant has knowledge of and access to the object.
In addition to knowingly having the power or ability to control an object, the government must prove an act on the part of the defendant by which that power or ability is manifested and implemented, such as an act placing the object within easy reach of the defendant, or an act concealing the object from view.
Merely being present with others who have possession of an object is not “constructive possession.” In addition, momentary or transitory control of an object, without criminal intent, is not “constructive possession.” You should not find that the defendant possessed the object if he possessed it only momentarily, and either did not know that he possessed it or lacked criminal intent to possess it.
You may find that the defendant “possessed” methamphetamine as the term is used in these instructions if the government proves beyond a reasonable doubt that the defendant had actual or constructive possession of methamphetamine.
Vol. I, Doc. 33 (emphasis added).
United States v. Bowen, 437 F.3d 1009, 1016-17 (10th Cir. 2006)