Can I be Convicted of a Drug Crime Even if I Have no Drugs on Me?

 Posted on April 18,2021 in Uncategorized

If the police conduct a lawful search and find drugs on your person - i.e., in your coat pocket - you can be charged with illegal possession of a controlled substance. However, even if you are not actually carrying any drugs, you may still be convicted of a crime if you had "constructive" possession of narcotics.

Constructive possession means that drugs are found in an area determined to be under your control.

The Elements of Constructive Possession

Constructive possession generally requires the state to prove two factors beyond a reasonable doubt:

  • You had knowledge that the drugs were present in the location they were found;
  • You had "immediate and exclusive" control over that area.

For example, say you live alone in an apartment. The police search the premises and find marijuana on the dining room table. It is a pretty safe bet you will be convicted of constructive possession even if you were not physically holding a joint. A jury can easily infer the drugs belonged to you.

However, what if you share an apartment with several other individuals? Suppose the police find cocaine stashed in a drawer in your roommate's bedroom. In this situation, you are much less likely to be charged with constructive possession since there is no way to prove you had "immediate and exclusive" control of the drugs.

IL Court Reverses Conviction, 15-Year Prison Sentence in Constructive Possession Case

This is not to say that individuals are never wrongfully convicted of constructive possession. Recently, an Illinois appeals court reversed the conviction and 15-year prison sentence of a man charged with illegal possession of drugs and weapons. The court said there was "reasonable doubt" as to whether the defendant actually lived at the apartment where he was arrested.

One night in 2013, Chicago Police Department officers executed a search warrant at the apartment in question. The defendant was not present at the time. During the search, police found a hidden compartment inside of a hallway closet. Inside the compartment were drugs, firearms, cash, and assorted drug paraphernalia.

Outside the apartment, an FBI agent located and identified the defendant, who was sitting in his truck. The police arrested the defendant, even though he had no drugs on his person, and no contraband was found in his truck. The arrest was largely based on the presence of some of the defendant's personal items in the apartment, including two prescription bottles and clothing.

The defendant elected for a bench trial without a jury. The trial judge found the defendant guilty. The Illinois First District Appellate Court agreed with the defendant, however, that the evidence was "insufficient" to support his conviction. Specifically, there was no evidence connecting the defendant to the apartment or the items recovered from the hidden compartment. The defendant did not have a key to the apartment, his personal items were not in the same room as the compartment, and no drugs were found on him or in his truck.

Have You Been Accused of a Drug Crime?

As this case illustrates, a drug charge can have serious consequences. No one should face 15 years in prison based on insufficient evidence. If you are facing a possession charge and need assistance from an experienced Orland Park criminal defense attorney, contact the Fotopoulos Law Office, today.


Illinois Official Reports

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