In last week’s post on this blog, we talked a little bit about the two different types of drug possession. We discussed that actual possession refers to having illegal drugs on your person or in your immediate vicinity while constructive possession refers to the presence of illegal drugs in your home or car. The difference in the two types of possession is a key point in determining whether you could face criminal consequences if a guest or passenger brings illegal drugs into your home or car, but it is not the only consideration. Your knowledge of the situation is also a factor; you cannot stop what you do not know is happening.

Knowledge of the Drug’s Presence

The Illinois Controlled Substance Act provides that it is illegal for a person to knowingly possess a prohibited substance. “Knowingly,” however, is very important part of the law. In seeking a conviction, prosecutors must prove beyond a reasonable doubt that you knew that the drugs were present, whether they were found in your car, your home, or in a purse or backpack. Depending upon the situation, proving your knowledge can be very difficult.

If you have ever watched the reality/documentary show COPS, you have probably heard many of the typical claims a suspect often makes when he or she is found to be in possession of what looks like illegal drugs. “That’s not mine,” “I have no idea where that came from,” or “My friend must have left that in my car.” While such excuses ring extremely hollow, there may be situations in which the driver of a vehicle is not aware that one of his or her passengers has cocaine or ecstasy in his or her possession. (Possession of up to 10 grams of marijuana was recently decriminalized in Illinois, making marijuana a less likely candidate for this type of case.) If you are a driver in such a situation, could you be responsible for the drugs your friend is carrying?

There is not a simple answer to that question. As with most areas of the law, it depends entirely on the circumstances of the situation. Important elements include where the drugs are being carried or hidden and whether you really did know that drugs were present in your car. Over the next few weeks, we will look at the factors that can affect a drug possession charge, helping you get the information you need to protect your rights.

Two Types of Possession

According to the Fourth Amendment to the U.S. Constitution, all American citizens have the right to be free from unreasonable search and seizures conducted by the government—generally in the form of law enforcement officers. Since the amendment was ratified—along with the other nine amendments that comprise the Bill of Rights—in 1791, what constitutes “unreasonable searches and seizures” have been constant issues in the American court system. The issue is now being raised again by a man from McHenry County who was arrested following a search that found 17 pounds of marijuana in his vehicle, as he has filed a federal lawsuit alleging the search was illegal and that officers on the scene falsified their reports to justify the warrantless search.

Search, Arrest, and Charges

In late August, a 31-year-old man was pulled over in Woodstock for an expired registration. According to reports, the officer asked the driver if he would wait and allow a drug-sniffing dog to sniff around the vehicle. The man reportedly refused, yet the officer told the driver that he could not yet leave. A second officer arrived with the dog and the dog was run around the car. The dog indicated the presence of drugs and the police found a duffel bag containing about 17 pounds of marijuana in the trunk.

Most criminal charges related to drug possession and other drug crimes are largely based on the evidence found by law enforcement during a search of a suspect’s property—often a home or vehicle. The United States Constitution, however, places very strict limits on how and when law enforcement officers may conduct such searches so that the Fourth Amendment rights of the suspect are not compromised. In most cases, the police must obtain a warrant from a judge authorizing the search based on probable cause that the search will yield useful evidence, illegal weapons, or drugs. The other alternative is for the suspect to allow the search when requested, though granting such permission is not often a good idea.

As police investigatory techniques evolve, controversies often arise regarding whether creative procedures place a citizen’s constitutional rights in jeaopardy. Such was the issue before the United States Supreme Court several years ago as it considered the constitutionality of the use of drug-sniffing dogs on a suspect’s property before obtaining a search warrant.

Florida v. Jardines