Some people get entangled with legal matters simply for being at the wrong place at the wrong time. They might have been in a car with their friend without knowledge of illegal drugs in the back seat, or something of the sort. When this happens, can they be arrested or charged with the same offense for possession of an illegal substance?

In order to provide a clear understanding of the situation, one has to look at the various factors involved, including the type of possession and indicators considered by the courts.

Two Types of Possession

When it comes to the possession of drugs, courts determine whether the person had actual possession or constructive possession.

Actual Possession

Actual possession is equivalent to physical possession of the illegal substance, such as holding it in their hands or having it in their pocket. As long as the substance in question is on their person, it can be construed as having actual possession of it.

Constructive Possession

On the other hand, constructive possession does not require physical possession of the illegal substance. To constructively possess something, according to Indiana courts, means a person has both the intent and ability to exercise dominion or control over it.

In the context of illegal substances, a person who has the ability to grab and retrieve it can be considered to have constructive possession.

Court Indicators of Possession

While actual possession is straightforward, constructive possession isn’t always as simple as black and white. When in the face of the situation possession cannot be determined, the courts take a look at a number of other indicators.

Proximity to the Persons Involved

Here, the courts will assess how close the person was to the illegal substance. Someone within close proximity to it will more likely be aware of its existence compared to someone at a further distance.

In a car, for example, where illegal drugs are placed on the floorboard, the person sitting on the passenger side will likely know it is there as it’s right by their feet. Hence, it’s a lot more difficult to make a case against their awareness of the illegal drugs as compared to someone seated in the backseat.

Incriminating Statements Made by the Parties

According to the Miranda doctrine, whatever a person arrested says can and will be used against them in a court of law. When they expressly state to the police officer that they own the illegal substance, they effectively incriminate themselves.

Comingling of Personal Property

Comingling of personal property happens when two people’s stuff are mixed together. For example, if a bag containing illegal drugs owned by one party also has another person’s identification card, the two of them can be held responsible for the possession of the illegal drugs found in the bag.


The owner of the bag, car, or any other piece of property where the drugs are located almost immediately gives them constructive possession of the illegal substance.

How Smoking Weed Can Lead to a Big Case?

You may not personally agree with smoking weed. In fact, I had a client the other day who was telling me all about his philosophy on the topic, and how smoking weed was wrong. I believe that it is everyone’s right to have their own opinions and thoughts on these matters. That being said, until weed is legalized, it still poses a problem. Let me take you through a scenario that I have seen time and time again as a defense attorney.

You are stopped for a minor traffic infraction or traffic crime. It might be that your license is suspended, the tint on your windows is too dark, or your license plate is in the wrong place. The reasons to be stopped are too many to go through, but the point is, that it all starts with a traffic stop. You pull over and are waiting for the officer to come to the car. Your mind starts spinning, you know you have been smoking weed. The officer approaches the car, and what do they smell? Once they smell the marijuana, whether it be burnt or raw, they then have the right to say, “Mr. or Ms. ________, will you please step out of the car?” The scent of marijuana they picked up on has given them probable cause to remove you from the vehicle and search your car.

For many people in these situations, maybe smoking weed is not the only thing they have going on! What happens when in addition to smoking a little weed, they have pills or a large quantity of more serious drugs? What if there is a gun in the car they do not have a license for? This is the path so many cases take. It all begins with a traffic stop, the officer smells marijuana which leads to a search, a search that then turns up something much more serious.

Can Multiple People Be Arrested for Possession of the Same Drugs?

Generally, multiple people can be arrested and charged for the possession of the same drugs. But the situation would differ on a case-to-case basis, depending on the factor of constructive possession and the court’s indicators.

A Lawyer’s Tip

It can be difficult to build a defense against constructive possession, especially with the sheer number of indicators the courts look at to determine it. And as they say, prevention is better than cure. In this scenario, it’s wise for individuals to always know the people they are spending time with. Learn their habits, assess their likelihood of carrying illegal substances, and do a quick inspection of the surroundings.

These small actions can go a long way in preventing arrest or charges for the possession of illegal drugs should they get pulled over by a police officer in a car, have authorities knocking on the door with a search warrant, etc.

Have you been charged with possession? Don’t try to tackle the pitfalls on your own. Let the trusted legal counsel for criminal allegation defense advocate on your behalf for the best possible outcome.