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Friday, 19 August 2011 15:07

Constructive Possession in Arkansas and the Seven Magic Words: "Officer, I Don't Consent to Any Searches."

In Arkansas, many innocent citizens have been, and many more will be, arrested when a car in which they are a passenger is stopped for a minor traffic violation and subsequently searched. In a substantial number of these encounters, the officer will have no probable cause to search the vehicle. He'll request the driver's consent to search, and the driver will give it.

Often, this "request" will sound and feel like a demand; it may be a branch in a compound question: "You don't have anything illegal in the car do you? Mind if I take a look?"

The proper answer to that question is, "Officer, I don't consent to any searches. Am I being detained or am I free to go?"

When you find yourself arrested and charged as a result of drugs being found in the car in which you were a passenger, unless they were on your person, your charges stem from the theory of "constructive possession."

In Arkansas, the Supreme Court has consistently held that it is not necessary for the State to prove that you had actual physical possession of the drugs. Possession can be implied when the drugs are found in a place that is immediately and exclusively accessible to you and "subject to your dominion and control." If the State can prove that you had care, control and management over the contraband, you may be found guilty of possession under the constructive possession theory.

However, where evidence of possession is purely circumstantial, as it is where you are simply a passenger in the car where the drugs are found, the State needs more to establish possession. There must be some additional factor beyond your mere presence to link you to the contraband. In fact, there must be some evidence that you had knowledge of the presence of the controlled substance in the vehicle.

If the contraband is in plain view, or plain smell, the State will have the proof it needs to show you had knowledge of the presence of the contraband. Your presence coupled with knowledge of the drug's presence is enough for a judge or jury to find you guilty in Arkansas.

In sum, you don't have to be holding it to be found guilty of possession; if you can see it or smell it, you know it's there. Never consent to a search and remind your friends: "Officer, I don't consent to any searches. Am I being detained or am I free to go?"

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How do you stand yourself after representing someone in a criminal trial you know is guilty?

Fair question. In some cases I couldn’t do it. When I have done it and when I do it in the future I rationalize, correctly, I believe, that everyone is innocent until proven guilty; that the prosecutor has the burden of proof and that it’s my job to make sure the prosecutor meets that burden. All of that can be achieved, and the Defendant doesn’t even have to testify. I would not knowingly put a client on the stand and allow the client to tell a lie.

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Percentage fees in personal injury cases, other than medical negligence and product liability, are based upon a sliding scale of 1/3 of the gross recovery prior to filing suit, 40% thereafter and 45% in the event a notice of appeal is filed. Fees in medical negligence and product liability cases are, based on the same sliding scale, 40/45/50. Fees in Federal Tort Claims cases are limited to 20% of the gross recovery prior to filing suit and 25% thereafter.

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Criminal (2)

Constructive Possession in Arkansas and the Seven Magic Words: "Officer, I Don't Consent to Any Searches."

How do you stand yourself after representing someone in a criminal trial you know is guilty?

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