Possession — the Affirmative Link in Drug Cases

By Martin Miller

“Possession” means actual care, control and management. In order to successfully prosecute someone for unlawful possession of a controlled substance, the state must prove two elements: (1) the accused exercised care, control and management over the contraband; and (2) the accused knew that the material possessed was contraband.

Regarding the first element, the evidence must affirmatively link the defendant to the substance to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and whereabouts, and controlled it. To establish the second element, the state must prove that the accused knew that the substance possessed was contraband.

Under the affirmative links doctrine, if an accused does not have exclusive control and possession of the place where contraband was found, it cannot be concluded that he had knowledge or control over the contraband. Mere presence at the scene does not prove possession. The exception is if there are additional independent facts and circumstances that affirmatively link him to the contraband. These independent factors can be proven by direct or circumstantial evidence, but must establish that the accused’s connection with the drug was more than just fortuitous.

Some factors that can link the accused to contraband include: (1) if contraband was in plain view or recovered from an enclosed place; (2) if the accused was the owner of the premises or had right to possess the place where contraband was found; (3) if the accused was found with large amounts of cash; (4) if contraband was conveniently accessible or found in close proximity to the accused; (5) if strong residual odor of contraband was present; (6) if the accused possessed other contraband when arrested; (7) if contraband paraphernalia was present; (8) the accused’s physical condition indicated recent consumption; (9) the accused’s conduct indicates consciousness of guilt; (10) the accused attempted to flee; (11) the accused made furtive gestures; (12) if the accused has a special connection to the contraband; (13) if occupants of the premises gave conflicting statements; (14) if the accused made incriminating statements; (15) the quantity of the contraband; or (16) if the accused was observed under suspicious circumstances in a suspicious area. It is important to remember that the number of factors is not as important as the logical force the factors have in establishing the elements of the offense.

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