Part I: Possession, Exclusive Possession, and Joint Possession
One of many issues surrounding drug charges is the idea of “possession” and “joint possession” (which means possession by one or more people, not the possession of a joint.) In Part I of this blog, I will discuss the ideas of “possession,” “joint possession,” and “exclusive possession” of drugs, as those ideas related to drug charges.
“Possession” Means…
The offense is called possession of a controlled substance, so it logically follows that, to be guilty of the offense, the Accused must possess the contraband. But what does “possession” mean in the law?
The legal definition of “possession” is “actual care, custody, control, or management” of the contraband. Texas Penal Code s1.07(a)(39). For the Government to prove that the Accused “possessed” the contraband, the Government must prove: (1) possession (as defined above), and (2) that the Accused knew that the item possessed was contraband.
That much is clear enough when the Accused is caught with contraband in his pocket, or in her purse. But, what happens, for example, when a bag of pot is found in a car with two occupants? Can both be charged with possession of the same bag of pot?
Exclusive v. Joint Possession
“Exclusive possession” refers to possession of drugs or contraband by a single person. For example, if the Accused is arrested, and police find a gram of heroin in the Accused’s pocket or purse, the Accused would be alleged to have had “exclusive possession” of the contraband.
“Joint Possession” refers to possession of drugs or contraband exercised by more than one person. For example, if three people are in a car that is stopped by police, and a bag of pot is found underneath the back of the passenger seat on the floor, all occupants of the car could be charged with possession of the bag of pot. Possession does not have to be exclusive—contraband can be jointly possessed by two or more persons. See Hernandez v. State, 538 S.W.2d 127, 130 (Tex.Crim.App. 1976). So, both occupants of the car can (and almost always are) charged with possession of the same item(s) of contraband.
The problem, however, is that seldom (if ever) does the bag of pot belong to all of the occupants of the car—usually, it is a specific person’s. But, while simply charging both occupants for possessing the same bag of pot might make for easier police work, it generally makes for a substantially weaker charge for one of people charged.
In Part II, I’ll discuss how it is exactly that one case ends up being substantially weaker in the majority of joint possession cases.