Keith Mack
Law enforcement plays a crucial role in addressing possession cases, particularly when contraband or illegal items are found in a residence. The presence of drugs or prohibited substances in a home can lead to drug possession charges, even if the owner was unaware or not in actual possession. Police officers have the authority to make arrests and gather evidence, but they must establish probable cause and obtain search warrants to ensure legal searches and seizures. The complexity arises when multiple individuals occupy a property, making it challenging to determine who is responsible for the contraband. Law enforcement considers factors such as the location of the drugs, security measures, and individual behaviours to establish constructive possession. In some cases, law enforcement may assist individuals in reclaiming their belongings from another person's residence, providing safety and support during the process. However, when items are seized as evidence during an arrest, law enforcement can retain them for the duration of the investigation and legal proceedings. Overall, law enforcement's involvement in possession cases is multifaceted, requiring a balance between upholding the law and protecting the rights of those involved.
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What You'll Learn
Police seizure of possessions
In the United States, civil forfeiture has been used to curb illegal activities such as drug trafficking, with the Drug Enforcement Administration (DEA) seizing properties where marijuana is used and sold. While this practice has faced criticism for its potential for abuse and excessive punishment, it remains a tool for law enforcement to disrupt criminal enterprises.
When police seize possessions, they must follow certain legal procedures. In Texas, for example, law enforcement has 30 days to file a notice of seizure and intended forfeiture. Individuals whose possessions have been seized have around 20 days to respond to this notice. Consulting with an experienced lawyer is crucial to navigating the complex legal landscape of forfeiture laws and meeting crucial deadlines.
In the context of drug possession charges, law enforcement must prove beyond a reasonable doubt that an individual was in possession of a controlled substance and was aware of its nature. This can be established through “actual possession," where the substance is found on the person, or “constructive possession," where the person exercises control over the substance even without actual possession.
Constructive possession cases can be more challenging to prosecute, especially in shared living spaces. Police and prosecutors must consider factors such as the location of the drugs, security measures, and individual behaviours indicating knowledge and control over the contraband. Ultimately, the strength of the evidence and the specific circumstances of each case will determine the outcome.
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Defences against possession charges
- Unwitting possession: If you were unaware that you had drugs on your person, you can argue that you did not know about their presence, thereby challenging the possession charge. For example, you may have borrowed someone else's jacket or car, and the drugs belonged to the owner.
- Lack of possession: Even if drugs are found in your vicinity, you can argue that they did not belong to you. This defence can be particularly relevant if you are in someone else's home during a police raid.
- Duress or coercion: If you committed the crime of drug possession under the threat of imminent harm or coercion, you can argue that you acted under duress. This defence requires proving that the threats were credible and immediate, and that you feared for your safety or the safety of your loved ones.
- Entrapment by law enforcement: This defence applies when a police officer or government agent induces you to commit a crime that you would not have otherwise committed. This can include repeated pressure to buy or sell drugs, or the use of deceptive tactics to persuade you to commit a drug-related crime.
- Reasonable doubt: If drugs are found in a shared living space, the prosecution may have difficulty proving which individual controlled the drugs. You can argue that you had no knowledge of the drugs' presence, creating reasonable doubt about your possession.
- Legal prescription: If you have a valid prescription for the controlled substance in question, this can be used as a defence.
In cases of possession of stolen property, the prosecution must prove that you knew or ought to have known that the item was obtained through criminal activity. An experienced defence lawyer can also examine whether your rights, as guaranteed by the Canadian Charter of Rights and Freedoms, were violated during the police investigation.
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Police search procedures
When drugs are found in a shared residence, law enforcement faces the challenge of determining constructive possession. They consider factors such as the location of the drugs, security measures, and visibility of the hiding place. Drugs found in a common area might implicate multiple occupants, whereas drugs discovered in a locked bedroom dresser clearly point to the occupant of that room. Police may also consider individual factors such as suspicious behaviour or a history of drug crimes to identify the prime suspect.
In some cases, law enforcement may seize property that is believed to be involved in illegal activity or used as evidence in a criminal case. This includes not only contraband but also items such as computers, hard drives, and phones. The police can generally hold onto this property for as long as it is needed for the investigation or criminal proceedings. However, if evidence is obtained illegally, it may be suppressed, and charges based on such evidence may be dismissed.
If an individual believes their property has been unlawfully seized or retained by law enforcement, they may have legal recourse. They can seek the assistance of an attorney to argue for the return of their belongings or file motions to suppress illegally obtained evidence. Additionally, some jurisdictions provide expedited processes for individuals to recover personal property, such as filing a complaint for a summary proceeding.
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Possession charges for homeowners
If illegal drugs are found in a home, law enforcement will attempt to determine who is responsible for possession. The state must prove beyond a reasonable doubt that the individual was in possession of a controlled substance and was aware of its presence and nature. This can be more challenging when multiple people occupy a property, and the drugs are found in common areas.
In the case of a sole resident, law enforcement will likely presume the drugs belong to them. However, when multiple people share a property, law enforcement will look for individual factors that indicate knowledge and control over the contraband. For example, drugs found in a bedroom provide stronger evidence of possession than those hidden in a common area. If one person has a history of drug crimes, they may become the prime suspect.
The legal concept of "constructive possession" comes into play when an individual is not in actual possession of a controlled substance but exercises dominion and control over it. This typically applies when the drugs are found on or near an individual's property, and they have the ability to maintain control over the area where they are found. For example, if drugs are found in a shared living room, both roommates may be charged with constructive possession, whereas drugs found in a locked container in one roommate's closet may not lead to charges for the other roommate.
Defenses against possession charges may include asserting a lack of knowledge or control, highlighting a lack of historical drug use, providing evidence of absence during the alleged possession timeframe, or demonstrating that the drugs were left by another party. Speaking with a criminal defense attorney is essential to crafting a strong defense.
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Recovering possessions after an arrest
Law enforcement can confiscate property for safekeeping, evidence, contraband, and forfeiture. Whether and how you will be able to get your property back depends on the reason it was seized. If your property is seized, it is usually held at a police station until the matter has been dealt with. If you are charged with an offence, the police will decide whether the property will be used as evidence by the prosecution.
If your property is confiscated for safekeeping, you are entitled to a voucher. You will need this voucher, along with two forms of ID, to get your property back. You can also write a notarized letter authorizing another person to pick up your property on your behalf. They must bring the property voucher, a notarized letter, and two forms of photo identification. If you did not receive a voucher when you were arrested, you can obtain one in person at the precinct where you were taken.
If your property is confiscated as evidence, it will be held until the criminal case is over, including appeals. Your attorney may be able to reclaim this property for you, depending on the circumstances. If the property is not needed as evidence, it must be returned to the owner once the government no longer has a need for it.
If your property is confiscated as contraband, you will not get it back. Contraband includes items that are illegal to possess, such as unlicensed handguns, illegal drugs, and counterfeit money.
If your property is confiscated due to forfeiture, the process is called a ""forfeiture hold". This may lead to a forfeiture case regarding your car, money, or other property. Forfeiture laws allow law enforcement to seize and sell items such as cars used to commit or flee a crime. Police can also keep cash that represents the proceeds of a crime. If successful, the forfeited property becomes the property of the government, meaning the owner will not get the property back.
If you are unsure whether your property was confiscated, you can follow up with law enforcement. If the police do not know who the property belongs to, you will need to contact them and provide personal information and evidence of ownership to get it back. This carries a risk of arrest if the property is believed to have been used in a criminal offence. An approach to the police can be made through a lawyer or a police liaison group.
If your possessions are in someone else's home, you may be able to recover them by filing a complaint for a summary proceeding. This process is different in each state, so it is important to seek legal counsel in your jurisdiction to learn about your rights. You may also be able to request that a sheriff or police officer accompany you to the property to reclaim your belongings.
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Frequently asked questions
Call a criminal defense lawyer to discuss your options. Do not speak with the police without guidance.
Yes, you can still be arrested for possession even if the drugs were not found on your person. If you are arrested, you have the right to ask for a lawyer and stay silent.
The police can hold onto legally seized property for as long as it is needed for an investigation or proceeding. If the government oversteps, you can seek remedies through the court.
