Many young people have roommates, and some of those roommates may use,
deal, or otherwise possess illegal drugs. Some may wonder if they can get in trouble for
drugs their roommate has in their possession. You can’t always control what a
roommate does! Others aren’t necessarily in a financial position to be picky about who
they live with. Well just because your roommate has or uses drugs, does not necessarily
mean you can get in trouble for that.
There are many things a Court or jury would need to find to find that you yourself
were in possession of drugs that were found in a house you rented or owned. For
purposes of this article drugs found “in a house” means like in a drawer or closet. Not a
situation where they are in someone’s pocket. That would be what is called “actual
possession” and it much clearer who is in possession. If drugs are found in home, but
not actually on someone’s person, it is called “constructive possession”.
Constructive possession is when someone has both the 1) capability and 2)
intent to maintain control over the drugs.
Capability:
Unfortunately for everyone that has a rental or ownership interest in home, the
“capability” prong of the test is met by merely proving that someone has a “possessory
interest” in the property. Basically, anyone whose name is on a lease has the “capability”
to maintain control over the drugs found in the home.
Intent:
The next part of the test is the “intent” portion. When multiple people live in a
home, that is considered a “non-exclusive” premises. That means that multiple people
have equal access to the house or apartment. In these situations, there has to be
evidence that you knew the drugs were present. The court can look at any evidence that
might support this, but primarily they have identified 6 factors: (1) incriminating
statements made by the defendant, (2) attempted flight or furtive gestures, (3) location
of substances like drugs in settings that suggest manufacturing, (4) proximity of the
contraband to the defendant, (5) location of the contraband within the defendant’s plain
view, and (6) the mingling of the contraband with other items owned by the defendant.
The courts also strongly consider if the defendant is present when the drugs are found.
Just the knowledge that your roommate uses drugs would not necessarily be
enough to say that you knew they were in possession of drugs. Further, it is unlikely that
if the drugs are hidden in your roommate’s closet that you would be found to be in
possession of the drugs. The close calls are usually when the drugs are located in a
common area of the home. If the drugs are in a common area, in plain view, and you are present at the time they are found by law enforcement, it is very likely you will be charged and convicted of possessing those drugs, even if they weren’t yours.
It is a little outside the purpose of this article, but the same factors are considered
when evaluating constructive possession of drugs found in a car occupied by multiple
people. Often, the person sitting closest to them is going to get stuck with the charge.
That can change however if the drugs are not in plain view and the person in the
passenger seat, for example, is not the owner of the car. There are an unlimited number
of situations, and the court can look at any factor to decide whether someone had the
intent and capability to maintain control over an item.
