According to the FBI, police officers make one drug possession every twenty seconds. So, simple possession is by far the most common drug charge in Texas. Although possession of marijuana is usually a misdemeanor, illegally possessing any other controlled substance, including a prescription pain pill, is usually a felony.
Although Texas has some very tough drug laws, especially with regard to marijuana possession, a Fort Worth criminal defense attorney can often engineer a successful pretrial resolution. Many times, a drug diversion program is available, which may result in no criminal conviction. These favorable resolutions are even easier to achieve if the case involves a legal defense.
Under the Fourth Amendment, before they search a person or place, police officers must have a search warrant, or a search warrant exception must apply. Officers hardly ever have warrants in drug possession cases, so that means a search warrant exception must apply. Some common ones include:
Consent: Only owners can consent to property searches, such as dwellings or vehicles. Yet officers do have some discretion here. A person with apparent authority, like a roommate whose name is not on the lease, can provide consent in some cases. Additionally, officers can coerce owners (e.g. "if you don't provide consent I'll get a warrant").
Plain View: If officers see drugs in the open when they approach a vehicle or enter a dwelling, they may seize it without a warrant. Partial plain view cases, like seeing the grip of a pistol, are in a grey area.
Weapons Pat-Down: If officers reasonably suspect criminal activity, they may detain people and pat them down for weapons. If they feel drugs during these searches, they may seize them under the plain view doctrine.
The prosecutor has the burden of proof to establish these and other search warrant exceptions, like the automobile exception or the exigent circumstances exception.
No Legal "Possession"
Frequently, when officers find drugs in a car, they arrest all the passengers. However, these sweep arrests often do not hold up in court. There are several different elements to possession:
Proximity: In alcohol open container cases, any alcohol in the passenger area is illegal. Many prosecutors use that same analysis in drug possession cases, and most jurors go along with that line of thought.
Control: However, possession is more than proximity. The defendant must also be able to control the drugs. It's difficult to establish control if the drugs were more than an arm's length away and there was any impediment, like someone else was holding the drugs.
Knowledge: Finally, prosecutors must prove the defendant knew about the drugs. That's hard to do, especially if the defendant did not know the other people in the car very well.
Prosecutors must prove every element of possession beyond any reasonable doubt. That's the highest standard of proof in U.S. law.
Drug possession cases are not always easy to prove in court. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. Home and jail visits are available.