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Possession is one of the most contested topics in courtrooms today. Usually, it is due to the nature of the actual possession. If law enforcement stakes out your house for a week, records you selling, and then raids your home, then yes you are probably busted. Though, never out of legal options! However, the majority of possession cases come during a “traffic stop”. Yes, that is in quotations for a reason. Many of these traffic stops are pretextual in nature. What that means is the officer is stopping you because they want to make a drug bust. Not because you made an “unsafe turn” into the right lane instead of the left. The matter of the fact is that any officer worth his salt can make a traffic stop on almost every single vehicle if they just follow them long enough. So, when they tell you they pulled you over because your rear-view mirror was obstructed it is not a coincidence. The other ten vehicles with Jesus hanging from the rear-view mirror went right on past… According to the highest legal criminal court in Texas the sole definition of possession is: “the actual care, custody, control or management of contraband.” Humason v. State, 728 S.W.2d 363 (Tex. Crim. App. 1987).

Thank you, Texas Court of Criminal Appeals, but what does that actually mean? When they say care, custody, and control they mean an affirmative link. AKA they have to tie you to the drugs. The drugs being in the vehicle alone is not enough to actually link you to them. There must be factors supporting that link. If you rent a car and there is 10 pounds of meth in the drunk that you never opened, how does the State link you to it? What they look at is:

  1. The contraband was in plain view.
    • Usually paraphernalia like a pipe, Ziplock bags, used needle, or blunt.
  2. It was found in an enclosed place.
    • Almost always in a vehicle
  3. When it was found there was sufficient light to see it.
    • Officers have flashlights, but lighting does matter.
  4. The amount of contraband that was found.
    • This absolutely should not be a factor.  However, judges will consider the severity of the offense.
  5. It was conveniently accessible to the defendant.
    • Within reaching distance is usually the standard.  If there are more than one occupant, everything changes. (See Blog Post about Joint Possession of Drugs)
  6. The defendant’s actions toward it indicate possession by the defendant.
    • Police call this “furtive movements.”  Not many know what it means, but essentially it is movement to conceal guilt.  When you see those red and blue lights behind you, don’t start moving around.  One movement and the police will become suspicious.
Possession of Drugs

Marijuana is a tricky possession topic because many counties are not prosecuting small marijuana cases.  However, as of 2022, the smell of marijuana in your vehicle is probable cause to search it.  That means, if you smoke in your vehicle, they legally can search it due to smell.  It also means, if you have enough raw marijuana near your person when you roll down the window, they may also be able to search it.  You would be surprised how obvious marijuana can be when confined to a small space. To conclude, possession is a tricky subject.  Though carrying drugs is never recommended, you still have legal protections.  Make sure you know your rights when pulled over:

  1. Fourth Amendment Protections:  These are vast, but remember the police have no right to search your vehicle.  You can say NO!  The founding fathers recommended it!  Be careful when they ask to pat you down.  A “Terry Frisk” is not needed when you are in your vehicle.  Additionally, if it is a mere traffic stop, you need to be careful if the police ask you to get out of the vehicle.  If you had a broken tail light, then why are they patting you down for weapons?
  2. Which leads me to my next point.  Always be courteous to police officers.  “Wait, they are violating my right, why should I be nice?”  Great question!  With years of experience working for prosecuting offices, I can guarantee the nicer you are, the better off you will be.  Does that mean to tell them “Officer, I know you pulled me over for speeding, but I have a pound of meth in my trunk.”  No!  It means “Sorry officer, my lawyer told me not to let you search my car.”  Politely protect your constitutional rights and officers will respect it.  If they don’t, your case will get dismissed, and worst-case scenario, your behavior will benefit you at sentencing should it get to that.
  3. You have Fifth Amendment protections.  “I’d like to speak to my lawyer” is a perfectly acceptable answer.  Once the handcuffs come out, and usually before, you are considered in custody.  Once you are in custody, your Fifth Amendments rights are triggered and unless you are Mirandized and waive your rights, your statements cannot be used in court.  Life lesson:  Politely do not waive your Miranda rights.