Houston, TX asked in Criminal Law for Texas

Q: I was with a friend and we got pulled over. There was a scale under my seat and we both said wasn’t ours well before

Leaving cop ask if anyone had drugs the guy I was with had meth. On way to jail he turn around a realize is and said would get a letter to let us know when to go to court. I didn’t get a letter so was 2years ago when that happens. 7 months ago I flip a truck and cop didn’t say had warrant. Well I didn’t know was I. Trouble and when cop pulled me over other day he said had warrant and was for meth. The guy was with had it on him not me. Well the cop said when coming to my truck smell like weed. I don’t smoke and never had anyone in my truck either. Well he went on my truck and look around roll up window with out permission can he do that and why would I get warrant for meth when other guy had it. In Texas

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1 Lawyer Answer
Kiele Linroth Pace
Kiele Linroth Pace
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: The first thing your attorney will probably try to figure out is whether the officer had reasonable suspicion to stop and search in the first place, because if there wasn't a good reason to pull you over, or there wasn't a good reason for the traffic stop to turn into a drug investigation, then the attorney might be able to argue about that rather than whether you had "constructive possession" of the drugs.

More than one person can be in "possession" of an illegal item if they each have "care, custody, and control" of it. The fact that the drugs were in your vehicle doesn't look good. Also, the scale under the seat is more directly connected to you than to the other guy. Although scales are not illegal, they may create some reasonable inferences regarding your involvement with drugs, especially a scale that is accurate to grams or milligrams because common innocent items like postage only require a measurement accuracy in the range of ounces. If there is drug residue on the scale it is paraphernalia.

That said, although these facts could be enough to justify an arrest, they are not necessarily enough to prove possession beyond a reasonable doubt. Consider the following paragraph from an appeals court decision upholding a conviction for possession against a sober person who was found lying on a couch in someone else's home where the police also found drugs in plain sight but not directly on the sober person:

"In order to prove unlawful possession of a controlled substance, the state must show that the defendant exercised care, custody, and control of the substance and that he knew the substance was contraband. It is not enough that the defendant is present at the scene of the offense or even that he has knowledge of the offense; he must exercise, either solely or jointly, some dominion or control over the contraband. One who possesses a substance has control over that substance unless he has divested himself of the right of control by some affirmative act. When the defendant is not in the exclusive control of the place where the contraband is found, there must be independent facts and circumstances indicating that he had knowledge and control of the contraband. There must be evidence affirmatively linking the defendant to the contraband, indicating that he possessed it knowingly or intentionally and that the defendant's connection with the drugs was more than just fortuitous."

So anyway, your chances are probably better if the meth was found in the other guy's pants than if it was in plain sight, or even inside a bag that you could conceivably reach, even if it didn't technically belong to you... but in general, the defendant's best bet is when the defense attorney finds something wrong with the officer's decision to stop and search you in the first place. The better the attorney you hire the better your chances, but the attorney doesn't make the facts or evidence so that element is out of the attorney's control.

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