Aggressive Advocates
To Protect Your Rights
Request a Free Consultation

Can I Be Arrested for Drugs That Aren’t Mine?

Wiberg Law Office, PLLC
Policeman arresting man for drug possession

According to the New Hampshire Department of Safety, there were 6,220 total drug crimes committed in New Hampshire in 2021. If you have been charged with a drug crime and are innocent of that charge, you might be wondering what steps you can take to clear your name. It’s natural to feel overwhelmed if you have been charged with a crime related to drugs that are not yours. During this situation, you have to remember: you have options.

Reach out to a criminal defense attorney for guidance during this challenging time. Attorney Sven Wiberg and Attorney Brian Stone at Wiberg Law Office, PLLC in Portsmouth, New Hampshire are dedicated to defending clients who have been falsely accused, bringing over 30 years of experience to every case. Set up a consultation when you’re ready to move forward.

Constructive Possession

In determining whether you will be prosecuted for the possession of drugs that are not actually yours, the principle of constructive possession will come into play. When you are alleged to have constructive possession of a drug, this means that the drug is not physically on your person, but you can still be said to possess the drug if they can show you had knowledge of the drug’s location and some measure of control over the vehicle or place where it was being stored. This may apply if drugs are found in a place that you have some control over, such as your car or home.  

For example, if an Uber or Lyft driver gets pulled over and searched, the driver could be hit with a constructive possession charge if drugs are found in the vehicle—even if the drugs aren’t theirs but belong to a passenger who has left them behind in the car. In that situation, the authorities would have to show that the driver knew that the drugs were there and knew that they were controlled drugs. The same can happen if drugs are found in a common area of a house shared by roommates. Since both roommates have a measure of control over that area of the house, both roommates could be charged with constructive possession, even though the drugs only belong to one of the roommates. 

“Know” or “Should Have Known”

“Knowledge” of the drugs’ whereabouts is more difficult to prove than “control” over an area. To bring a charge of constructive possession, the prosecution must also prove that you were aware of where the drugs were and that you were aware (or should have been aware) that the drugs were illegal.  Mere proximity to the drugs will not be enough. The prosecution will also have to prove that you had knowledge that there were drugs in the car or area controlled by the defendant.

Many factors can influence whether law enforcement will deduce that someone had “knowledge” of the drugs. In the above example of drugs found in a house occupied by two roommates, it may be more difficult to prove that the roommate had knowledge of the drugs if the drugs were kept in the other roommate’s room instead of in the common area.

The aforementioned Uber driver might have worse luck, as they have sole control over the car. However, since there must be proof beyond a reasonable doubt of “knowledge” of the drugs being in the vehicle and of the nature of the substance involved, the prosecution would still have an uphill climb on those elements of the offense. The Uber driver and their attorney may also be able to find evidence in their defense. For example, if the driver has a camera installed in the vehicle and there is video of the actual owners of the drugs, it might show that there was no basis to claim that the driver had the requisite knowledge of the drugs being in the vehicle and the nature of the contraband. Likewise, if the drugs were found in a closed backpack or purse in the vehicle, then they may have to prove who owned the backpack or purse to credibly claim which occupant had constructive possession.

There have been many cases where the police have arrested and charged everyone in vehicle with possession, even when the drugs were found in a bag or compartment (such as the center console or glove compartment). The attitude of these officers seems to mirror the old saying attributed to certain warriors in history: "Kill them all and let God sort them out." In this situation it's more like, "Charge them all and let the court sort them out." This is a very unfair but productive approach, since many defendants will plead guilty under such circumstance, despite being innocent, because of the cost in time and money in trying to fight the charge. Many of these same falsely accused defendants later regret their decision to plead when they realize that there can be really bad collateral consequences of such a plea and conviction.

Incriminating Circumstances  

Sometimes, other incriminating circumstances can help the prosecution determine that someone is in possession of drugs. These include drugs seen in plain view in a vehicle or home, drugs located among a defendant’s belongings, or a defendant’s ownership of any kind of drug paraphernalia.

Knowing that someone uses drugs and is likely to store them around the house can also lead to a constructive possession charge; in the case of the roommates, one roommate could face a constructive possession charge if they knew that the other roommate was using drugs, and the drugs were placed somewhere where both roommates could access the drugs.

These circumstances can aid in the prosecution’s accusations that the person knew where the drugs were or had control over the drugs.

For all of these reasons, it is vital to speak to a criminal defense attorney as soon as you know that you face a constructive possession charge. An experienced lawyer can help you to gather evidence that establishes your lack of knowledge of the drugs, even if you happen to have shared a space with someone who used that space to store drugs.

A competent criminal defense attorney will be familiar with the ins and outs of the laws surrounding drug crimes and will have a deep understanding of how prosecutors and judges are likely to think and act. Finally, a skilled lawyer will have extensive experience in defending clients in court as well as making their clients’ cases to the judge and guiding them through the appeals process should an unfavorable decision be reached.

Strong And Reliable Legal Representation

If you are innocent of the drug charges of which you’ve been accused, you don’t need to navigate the legal system alone. Contact the Wiberg Law Office, PLLC, serving Portsmouth, New Hampshire and the surrounding areas of Rockingham County, Dover, Rochester, and other towns in Strafford County, as well as Nashua, Manchester in Hillsborough County and the rest of the state. Our attorneys are adept at crafting strong defenses for our clients and will work diligently toward the goal of getting your drug charges dropped. Reach out today for a free, confidential consultation.