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Loudoun County Attorneys > Blog > Criminal Defense > The Three Ps of Drug Possession Offenses in Virginia

The Three Ps of Drug Possession Offenses in Virginia


Yes, we know that possession only has one P. But in criminal court, the state must establish not only this P, but also two other Ps. More on that below.

Back in the day, a drug possession offense was a slam-dunk conviction. The old days are over. Today, to many jurors, drug possession and individual use is usually harmless. So, they’re unwilling to punish these offenders, especially according to harsh 1980s-era drug laws.

Juror attitude has a ripple effect on criminal cases. The difficulty of obtaining a conviction motivates prosecutors to wheel and deal during settlement negotiations. To them, a minor conviction on a police record is better than no conviction at all. Given the harsh direct and collateral effects of a “minor” conviction, they’re probably right.

Juror attitude paves the way for a Leesburg criminal defense lawyer to successfully resolve drug possession matters.

Prove the Substance Was Illegal

Usually, this P is the most straightforward element of a drug possession case. However, it could also be the hardest part.

Police officers always testify that a substance “field tested” positive for marijuana or another illegal substance. A field test is usually an unscientific sensory test (look, feel, and taste). These results are often inconsistent with a subsequent chemical test.

Sometimes, the field test results are way off. In 2018, a Florida man went to jail for alleged heroin possession. A subsequent chemical test proved that heroin was actually Tide laundry detergent.

Other times, the illegal substance is mixed with a legal substance. Therefore the substance, although it has some illegal qualities, is legal.

Produce It in Court

Drugs and other physical evidence are inadmissible unless officers had probable cause or a judge issued a valid search warrant.

Probable cause has a very specific definition in this context. The Supreme Court has created very specific search warrant requirements, including:

  • Consent: Property owners or apparent property owners, like a roommate whose name isn’t on the lease, may voluntarily consent to police searches. We emphasize the “voluntary” nature of consent. Officers cannot coerce or threaten owners.
  • Plain View: If the initial stop was legal, and officers see drugs or other contraband, they may seize it without a warrant. So, the legality of the initial stop is usually the key issue in a plain view search.
  • Weapons Pat Down: If officers reasonably suspect criminal activity (evidence-based hunch), they can order suspects to stop, assume the position, and frisk them. Then, they can keep any contraband they see in plain view, or rather feel in plain touch.

Only a judge with jurisdiction over the case can issue a warrant. That warrant must be based on a probable cause affidavit.

Furthermore, the warrant must be specific. If officers can look for weapons in the garage, they cannot look for drugs in the living room, unless an exception applies.

Establish Legal Possession

Possession has three elements in criminal court: proximity, knowledge, and control. Proximity is usually easy to prove. For example, in a vehicle possession case, anything in the passenger area satisfies the proximity requirement.

Knowledge and control are different. Assume people are taking turns doing lines of cocaine off a mirror. The person at the end of the line doesn’t have control over that cocaine. Or, if officers find drugs in the glove box, unless Fred owns the car or is a close personal friend of the owner, he probably didn’t know about it.

Reach Out to a Hard-Hitting Loudoun County Lawyer

There’s a big difference between an arrest and a conviction in criminal law. For a free consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Convenient payment plans are available.

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