Possession of Illegal Drugs – Affirmative Links…

There are many instances when law enforcement officers find illegal contraband, for example, marijuana, cocaine, methamphetamine or United States currency, in a vehicle occupied by more than one person. In most of these cases everyone is arrested and charged with possession of an illegal drug (or money laundering when currency is found). The question then becomes: Is a person guilty of possession simply by being present where illegal drugs are found? The answer: No.

Conviction for possession of illegal drugs requires proof that the defendant possessed the drugs knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995 En Banc).

The Texas Court of Criminal Appeals has also held that: “To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called ‘affirmative links’ rule.” (Citations omitted). Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Cr.App. 2005).

The mere presence at a place where contraband is being used or possessed by others does not justify finding that a person is in joint possession or is a party to an offense. When the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the person to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it in order to convict the accused of possession of a controlled substance. Robinson v. State, 80 S.W.3d 730, 735 (Tex.App. – Houston [1st Dist.] 2002).

The “affirmative links rule” in a prosecution for possession of a controlled substance is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. Poindexter at 406.

Proof of an affirmative link between the accused and the contraband is needed to establish knowledge or intent to possess the contraband when the accused is not in exclusive possession of the place where the contraband is found. Robinson at 735.

Why My Client Is Different…

Well over 90 percent of criminal cases are resolved by way of plea negotiations with the State or the Federal Government. I believe the best outcomes are achieved when I can show that my client is different from the “average” person charged with a drug-crime or money laundering. It is important to understand that the various prosecutors I work with on a daily basis see hundreds of cases a year and thousands of cases during their careers as prosecutors.

If I can show that my client is different – in a positive way – I can often negotiate a better resolution for my client.

Case in point. I recently represented a young man from California. He was stopped in Potter County while on a cross-country trip. While searching his vehicle, law enforcement officers found a small amount of marijuana and some edibles believed to contain an illegal substance. My client was subsequently charged with possession of a controlled substance. The lab report showed that the edibles contained Tetrahydrocannabinol (Hashish). Because the edibles weighed over 400 grams, my client was facing 5 to 99 years, or life in prison. Through medical records we were able to show the prosecutor that my client had a medical condition and that traditional treatments had severe side effects on my client. Under the supervision of a medical doctor in California, my client was being treated with medical marijuana. The marijuana and edibles he had in his position were prescribed by his doctor. The state prosecutor was swayed by our arguments and agreed to let my client plead to a lesser Class A misdemeanor charge. My client went from facing life in prison to a maximum sentence of one year in the county jail. Because he was place on deferred adjudication probation as part of our plea agreement – he has the opportunity to have the case dismissed and not have a final conviction on his record.

Granted this was a rare case. However, by showing that you are different from what the prosecutor typically sees, you are more likely to achieve a better resolution of your case.