Criminal possession can arise in a number of ways.  From the unlawful carrying/possession of a firearm, to possession of a controlled substance and even to the possession of drug paraphernalia, the issues arising from the word “possession” can become very complex and nuanced.  This page is dedicated to assisting those who have been charged with a possession case understand the intricacies of this area of law.  If you would like to discuss your case with our experienced team of criminal possession attorneys after reading this page, feel free to contact our office at 214-321-4105.

Evaluating a Scenario of Criminal Possession

Scenario:  In the first scenario, a person is driving a borrowed car.  When the officer pulls the car over, they notice that the driver is nervous after being pulled over.  The police officer runs a background check on the driver and finds no outstanding warrants.  But because the officer thinks that the driver is nervous, they ask to search the vehicle.  The driver gives permission for the officer to search.  When the officer does search the vehicle, they find under the carpet on the driver’s side of the floor a container that is taped under the carpet that has been cut.  In that container, there is a controlled substance that seems to be cocaine.  Thereafter, the officer arrests the driver for possession of a controlled substance and that person is charged with a felony.

Question: Is this factual scenario enough to establish the crime of possession of a controlled substance?

Burden of Proof For Possession Cases In Texas

To establish the element of possession of a controlled substance, a prosecutor must prove that the person exercised care, custody, control or management over the controlled substance.  A prosecutor must prove that the person’s connection with the controlled substance is more than just fortuitous.  Medina v. State 565 S.w.3d 868.  To prove that a person knowingly possessed a controlled substance, it is not sufficient for a prosecutor to simply show that the person was in the vicinity of the controlled substance.  It is also not enough to show that the person was driving the vehicle containing the narcotics.  The prosecutor be able to show evidence that affirmatively links the person to the controlled substance or paraphernalia.  Harmond v. State 906 SW.2d 404.

Possession of a vehicle in which contraband is found, without additional facts and circumstances connecting the person to the controlled substance or paraphernalia will not support a conviction for possession of drugs.

Factors To Consider In Evaluating Affirmative Links Between the Illegal Possession of an Item and a Person

To determine if a person has a causal connection to the possession of the illegal possession of drugs, firearms, etc. you must first determine if the person was in exclusive possession of the place where the illegal items were found.

Not In Exclusive Possession

If the person was not in exclusive possession of the place, then courts and juries will be asked to look at the following factors to determine if possession existed:

1. The person’s presence when the search was executed
2. Whether the contraband was in plain view
3. The person’s proximity to and accessibility of the contraband
4. Whether the person was under the influence of the confiscated drug when arrested
5. Whether the person possessed other paraphernalia related to the drug when arrested
6. Whether the person made incriminating statements as to the ownership of the drugs
7. Whether the person tried to flee
8. Whether the person made gestures or actions that would be seen as trying to avoid attention or notice (“furtive gestures”)
9. Whether there was odor of the drug
10. Whether the person owned or had a right to possess the place where the drugs were found
11. Whether the place where the drugs were found was enclosed

Exclusive Possession of A Vehicle Where Drugs or Illegal Items Were Found

If the person was in a vehicle at the time that the illegal drugs or items were found, then the following factors would be considered to determine criminal possession of the items discovered.

1. Whether the accused was the driver
2. Whether paraphernalia to use the contraband was found in plain view or on the person.
3. Whether conduct of the person indicated consciousness of guilt
4. Whether the person had a special connection to the illegal items
5. Whether the occupants gave conflicting statements on relevant matters related to the illegal items
6. Whether the physical condition of the person indicated recent use of the illegal items
7. Whether the person admitted to possessing the items

Would The Scenario Above Be Enough To Convict For Possession?

Now that you understand the law and burden of proof required to establish possession, would the person in the scenario above be guilty of possession?

ANSWER:  No.  The facts above established that the contraband was discovered under a floor mat, hidden from view.  The automobile was borrowed from another person which means it was insufficient to show that the person exercised actual care, custody and control over the contraband.  There is no showing that the drugs were in plain view.  There is no evidence that the drugs emitted an odor.  No drug paraphernalia was found on the person or in the vehicle.  There is no indication that the person engaged in conduct that was suspicious or rose to the level of attributing the illegal items to them.  There was no evidence that the person had a special relationship to the item.  There was no conflicting testimony about the items.  There was no evidence that the person had recently consumed the illegal drug.

This fact pattern is based off a Texas case Kyte v. State of Texas 944 S.W. 2d 29.  As of the writing of this article, it is still good case law and is one of the seminal cases in outlining the factors to be considered when dealing with possession cases.

Hire an Attorney For Possession Of A Controlled Substance

If you would like to discuss your possession of a controlled substance case with our legal professionals after reading this article, feel free to contact us at 214-321-4105.  We can go through a detailed consultation of the facts in your case to determine what options are available to you to defend your criminal record.