Charge Everyone and Let the Jury Sort it Out.

posted by Scott Michels on Friday, August 16, 2013

On 8-12-13 at approximately 1125 hrs I Officer Jones noticed a vehicle traveling eastbound on Main Street. The vehicle appeared to be traveling above the posted speed limit. I activated my radar unit and locked the vehicle in at 30 mph in a 25 mph zone. I activated my emergency lights and proceeded to make a traffic stop of the vehicle.

I made contact with the driver and requested his driver's license, insurance and registration. There were three passengers in the vehicle and I requested identification from each of those individuals.

I could smell a strong odor of marijuana emanating from the vehicle. All occupants were removed from the vehicle and patted down for officer safety. All occupants denied the presence of any contraband in the vehicle.The occupants were asked to have a seat on the curb while I searched the vehicle.

During the search of the vehicle a plastic baggie containing approximately 1 gram of a green leafy substance was located in the center console. Based upon my training and experience this substance appeared to be marijuana.

All occupants denied the marijuana was theirs. All occupants were subsequently placed in handcuffs and charged with Possession of a Controlled Substance.

Sound familiar? This is an all-to-common fact pattern that comes across our desks on a regular basis. The same basic principles apply to other forms of contraband as well as to other locations, such as houses and apartments. So, in these types of situations, where contraband is found near multiple individuals how do prosecutors, defense attorneys, the courts and juries sort out who is responsible?

The law delineates two types of possession: actual possession and constructive possession. A person actually possesses contraband when it is found on his or her person; such as when a baggie of marijuana is found in someone's front pant pocket. When an individual has knowledge of an item's presence and has the authority or right to maintain control of the item, that person constructively possesses the item. The aforementioned fact pattern is an example of a constructive possession case.

Pursuant to Iowa law, to prove a constructive possession case the State is required to prove beyond a reasonable doubt the defendant:

  • exercised dominion and control over the contraband;
  • had knowledge of the presence of the contraband; and
  • had knowledge that the material was a controlled substance.

In the fact pattern presented, possession of the marijuana cannot be inferred due to multiple individuals occupying the same vehicle. Under these circumstances there are a number of factors that are examined to determine whether each defendant had knowledge and was able to maintain dominion and control over the contraband. These include (1) incriminating statements, (2) incriminating actions when contraband is discovered in or near the defendant's belongings, (3) fingerprints, or (4) any other circumstances linking the defendant to the contraband.

In motor vehicle cases additional factors that are considered are (1) was the contraband in plain view, (2) was it with the defendant's personal effects, (3) was it found on the same side of the car seat or next to the defendant, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant.

If you ever find yourself in a similar position it is in your best interest to simply remain silent and know you will be better off in the long run if you simply don't say anything. Shut up; Wise up; Lawyer up.  Just in case you need a friendly reminder in your time of need, don't forget to download the Oh Crap App available at Android Market and iTunes.

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About The Author

Mr. Michels grew up in Osage, Iowa where he graduated from Osage High School in 2000. He then attended Upper Iowa University in Fayette, Iowa where he graduated, magna cum laude, in December 2003 with Bachelor of Arts degrees in Criminology and Psychology. At UIU, M ... read more