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Atlanta Criminal Defense Lawyers > Blog > Drug Crimes > Is Being in the “Presence” of Drugs a Crime in Georgia?

Is Being in the “Presence” of Drugs a Crime in Georgia?


You probably know that it is against the law in Georgia to possess certain controlled substances, such as marijuana or methamphetamine. But what exactly does “possession” mean? Obviously, if a police officer finds drugs on your person during a lawful search, that is evidence of actual possession. Yet Georgia law also permits a jury to convict someone of a drug offense based on “constructive” possession.

According to Georgia case law, constructive possession essentially means that even if you do not have actual possession of a thing, you nevertheless have “both the power and intention at a given time to exercise dominion of control over a thing.” To give a simple hypothetical example, let’s say a police officer initiates a traffic stop. During the stop, the officer finds probable cause to arrest the defendant for DUI. The police then search the defendant’s vehicle and find drugs in the glove compartment. Under these facts, the state could prove the defendant had constructive possession of the drugs, even though they were not on his person.

Cobb County Man Convicted of Drug Trafficking

At the same time, constructive possession does not allow the state to convict someone for their “mere presence at the scene of a crime.” That said, if there is other evidence showing that a person was not just present but engaged in certain conduct, that can still be sufficient to establish constructive possession.

Consider this recent decision from the Georgia Court of Appeals. In Noellien v. State, Cobb County prosecutors charged a defendant with various drug offenses. The case itself began when law enforcement conducted surveillance of a house they believed was used to facilitate human trafficking and prostitution. While executing a search warrant of the residence for evidence of prostitution, police “discovered drugs in plain view,” according to court records. The police then stopped and obtained a second search warrant for drugs.

After obtaining the drug warrant, the police searched a bedroom in the residence and found “multiple cell phones” and other items commonly used in drug trafficking such as digital scales. An adjacent bathroom and closet contained substantial quantities of various controlled substances. The police also found other personal property identifying the defendant in this case as the occupant of the bedroom. Indeed, he was the sole person listed on the residence’s lease.

The defendant denied the drugs belonged to him. The jury found him guilty. The Court of Appeals affirmed the conviction, noting that the evidence obtained during the search was sufficient to establish the defendant had “constructive possession” of the drugs, even though he claimed he was merely present at the scene.

Contact Hawkins Spizman Trial Lawyers Today

If you are arrested and charged with drug possession, simply saying, “The drugs aren’t mine,” is not going to get you off. You need to work with a qualified Atlanta drug crime lawyer who can review your case and advise you of your rights. Contact Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.



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