Drug Charge Defense Attorney

Drug Charge Defense Attorney

Do not allow an arrest for possession of drugs overwhelm you. All too often, we see people who have been arrested for possession of drugs simply fail to make an effort to promptly address the criminal charges. Atlanta drug charge defense attorney Ben Sessions can develop a strategic plan to proactively address the charge to obtain the best possible result for you.

Types of Drug Charges that We Defend

Sessions & Fleischman has successfully defended clients facing numerous various drug charges, including, but not limited to:

• Possession of marijuana
• Possession of cocaine
• Possession of heroin
• Possession of methamphetamine
• Possession of LSD
• Possession of Ecstasy and
• Possession of drugs typically prescribed (for which the person did not have a valid prescription)

Are you charge with possession of drugs that were not actually in your possession at the time of your arrest?

Have you been charged with possession of drugs that were not in your actual possession? One of the most common questions that I am asked is: how does the state/government prove possession of drugs that are not in your actual possession – the drugs are not on your person? The question certainly makes sense, and there are bases for charging someone with possession when despite the drugs not being found on their person. However, there are also solid defenses to possession charges based solely upon constructive possession of drugs and circumstantial evidence of possession.

Maddox v. State, 322 Ga.App. 811, 746 S.E.2d 280 (2013).

The State’s contention was that Maddox, who was seated in the front passenger seat of the car, had constructive possession of the cocaine and marijuana found in the console located between the driver’s seat and the front passenger seat. No possession charges were brought against the driver of the car, or against its owner, or against the rear seat passengers. Maddox contends that the circumstantial evidence presented by the State failed to prove beyond a reasonable doubt that he had constructive possession of the contraband, and failed to exclude the reasonable hypothesis that either the driver or the owner of the car had sole constructive possession of the contraband.

[T]he law recognizes that possession can be actual or constructive, sole or joint … A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.

Holiman v. State, 313 Ga.App. 76, 78, 720 S.E.2d 363 (2011). The trial court instructed the jury on the above principles. Based on evidence that the owner of the car was present at the scene and that there were three other passengers in the rear seat of the car, the trial court gave additional instructions requested by Maddox in support of his defense that he was merely present in the car as a passenger; that he did not know about or possess the hidden contraband; and that the owner of the car had exclusive constructive possession of the contraband.  Accordingly, at Maddox’s request, the court instructed the jury: (1) that a rebuttable presumption existed that the owner of the car was in exclusive control and possession of the contraband found in the car; (2) that the presumption may be overcome by operation of the equal access rule providing that evidence showing a person or persons other than the car owner had equal access to contraband found in the car “may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner …” and (3) that the mere presence of an accused as a passenger in a car in which hidden contraband is found is insufficient to support a conviction in the absence of other evidence sufficient to show that the accused had constructive possession of the contraband. State v. Johnson, 280 Ga. 511, 512–513, 630 S.E.2d 377 (2006) (emphasis, punctuation, and citation omitted); Wilkerson v. State, 269 Ga.App. 190, 191–192, 603 S.E.2d 728 (2004); compare Thompson v. State, 234 Ga.App. 74, 77, 506 S.E.2d 201 (1998) (no error in refusing passenger’s request to instruct jury on rebuttable presumption that driver had exclusive possession of contraband, and on equal access, where instructions not supported by the evidence).

We find that the State presented evidence sufficient for the jury to reject Maddox’s defenses and to find beyond a reasonable doubt that, because he knowingly had both the power and intention to exercise dominion or control over the cocaine and marijuana found next to him in the car’s console, he had constructive possession of the contraband. Allen v. State, 191 Ga.App. 623, 624, 382 S.E.2d 690 (1989).

“A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden.” Mitchell v. State, 268 Ga. 592, 593, 492 S.E.2d 204 (1997). And “[e]vidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Whipple v. State, 207 Ga.App. 131, 132, 427 S.E.2d 101 (1993) (punctuation and citation omitted). The State’s evidence showed more than Maddox’s mere presence in the car and spatial proximity to the contraband. The evidence showed not only that Maddox had easy access to the contraband located next to him in the console “and thus the power to exercise control over it” (Allen,191 Ga.App. at 625, 382 S.E.2d 690), but also that he had the intent to exercise control over the contraband. Intent to exercise control may be inferred from the circumstances. Strozier v. State, 313 Ga.App. 804, 808, 723 S.E.2d 39 (2012). The State produced evidence that the amount and denominations of the bills possessed by Maddox, and the two cell phones he carried, linked him to the possession and sale of the contraband. Id. The odor of marijuana coming from the car occupied by Maddox, combined with other circumstantial evidence of intent, supported an inference that he was connected to the contraband. Vines v. State, 296 Ga.App. 543, 545–547, 675 S.E.2d 260 (2009). Maddox exhibited a shocked expression and immediately exited the car when he saw the officer approach, and he gave the officer a false name, circumstances from which intent to exercise control over the contraband may be inferred. Id. at 545–546, 675 S.E.2d 260. Similar transaction evidence showing that Maddox had two prior convictions for possession of cocaine and one prior conviction for possession of marijuana provided additional proof of intent. Taylor v. State, 305 Ga.App. 748, 751, 700 S.E.2d 841 (2010).

When the State’s constructive possession case is based wholly on circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Former OCGA § 24–4–6. The circumstantial evidence produced by the State was consistent with the charge that Maddox had constructive possession of the contraband; was sufficient to exclude every reasonable hypothesis save that of his guilt; and was sufficient to allow the jury to find beyond a reasonable doubt that Maddox had constructive possession of the contraband. Jackson  v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was also sufficient to prove beyond a reasonable doubt that Maddox was guilty of giving false information to the police officer. Id.

Maddox claims the trial court erred by refusing his request to instruct the jury that, where evidence shows another occupant of the car with equal access jointly possessed the contraband, but the State did not charge the other occupant, the State had the burden to prove that he was in sole constructive possession of the contraband. There was no error in refusing to give this instruction. Even assuming there was evidence that another uncharged occupant had equal access and jointly possessed the contraband, we conclude the State was not required to prove that Maddox had sole constructive possession.

The instruction requested by Maddox is based on a line of cases in this Court originating with Reid v. State, 212 Ga.App. 787, 442 S.E.2d 852 (1994). Like the present case, Reiddealt with contraband hidden in a car with multiple occupants. Citing to no authority, Reid held: When more than one occupant has equal access to hidden contraband, but only one occupant is prosecuted for possession of the contraband, the State has the burden of proving that the prosecuted occupant “was in sole constructive possession” of the contraband. Id. at 788 n. 1, 442 S.E.2d 852 (emphasis in original). For the reasons set forth below, we now conclude there is no reasonable basis for this holding, and overrule Reid in part to the extent it adopted this holding. To the extent this holding has been restated in subsequent cases, those cases are also overruled in part, including: Warren v. State, 254 Ga.App. 52, 54, 561 S.E.2d 190 (2002); Turner v. State, 276 Ga.App. 381, 383–384, 623 S.E.2d 216 (2005); Benitez v. State, 295 Ga.App. 658, 660, 673 S.E.2d 46 (2009); Xiong v. State, 295 Ga.App. 697, 699, 673 S.E.2d 86 (2009); Millsaps v. State, 300 Ga.App. 383, 385, 685 S.E.2d 371 (2009); Molina v. State, 300 Ga.App. 868, 871, 686 S.E.2d 802 (2009); Rogers v. State, 302 Ga.App. 65, 67, 690 S.E.2d 437 (2010); Fyfe v. State, 305 Ga.App. 322, 326–327, 699 S.E.2d 546 (2010); Bodiford v. State, 305 Ga.App. 655, 656, 700 S.E.2d 648 (2010); Wheeler v. State, 307 Ga.App. 585, 586–587, 705 S.E.2d 686 (2011); Jefferson v. State, 309 Ga.App. 861, 862–863, 711 S.E.2d 412 (2011); Holiman v. State, 313 Ga.App. at 78–79, 720 S.E.2d 363; Mercado v. State, 317 Ga.App. 403, 405, 731 S.E.2d 85 (2012); and Clark v. State, 319 Ga.App. 880, 738 S.E.2d 704 (2013).

Circumstantial evidence that multiple occupants of a car had equal access to hidden contraband may support the theory that all the occupants were guilty as parties to the crime and had joint constructive possession of the contraband. Castillo v. State, 166 Ga.App. 817, 822, 305 S.E.2d 629 (1983).1 Under these circumstances, the State may elect to prosecute the occupants jointly or separately (Kennemore v. State, 222 Ga. 252, 149 S.E.2d 471 (1966)), or may elect to prosecute only one of the occupants for directly committing the crime, but nevertheless prove the sole prosecuted occupant was guilty as a party to the crime. Trumpler v. State, 261 Ga.App. 499, 500–501, 583 S.E.2d 184 (2003); Brinson v. State, 261 Ga. 884, 413 S.E.2d 443 (1992). We find no basis for the holding in Reid that the State is required under these circumstances to prove that the prosecuted occupant had sole constructive possession of the contraband. We questioned the Reidholding in Holiman, supra, but found it unnecessary in that case to rule on whether to disavow it. As Holiman pointed out,

the settled rule [is] that the failure of the State to prosecute one party to a crime ordinarily offers no defense to other parties to the crime. See OCGA § 16–2–21 (party to a crime can be convicted even if the principal has not been prosecuted); Davis v. State, 163 Ga. 247, 248, 135 S.E. 916 (1926) (“Failure to prosecute the principal will in no wise relieve the accessory.”); see also Grimes v. State, 245 Ga.App. 277, 278(2), 537 S.E.2d 720 (2000) (“A party to a crime may be prosecuted and convicted for the commission of the offense regardless of whether anyone else was prosecuted.”).

Holiman, 313 Ga.App. at 79, 720 S.E.2d 363. And as the dissent in Reid pointed out, whether another occupant of the car was also in constructive possession of the hidden contraband, so that the defendant’s constructive possession was joint instead of sole, was irrelevant to whether the evidence was sufficient to find the defendant guilty. Reid, 212 Ga.App. at 791, 442 S.E.2d 852 (Beasley, P.J., dissenting). The State was not required to prove that Maddox was in sole constructive possession of the contraband in order to obtain a conviction, but could produce evidence proving beyond a reasonable doubt that Maddox had sole or joint constructive possession of the contraband.

(A) The drug or other substance has a high potential for abuse;
(B) The drug or other substance has no currently accepted medical use in treatment in the United States; and
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Schedule II:

(A) The drug or other substance has a high potential for abuse;
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions; and
(C) Abuse of the drug or other substance may lead to severe psychological or physical dependence.

Schedule III:

(A) The drug or other substance has a potential for abuse less than the drugs or other substances in Schedules I and II;
(B) The drug or other substance has a currently accepted medical use in treatment in the United States; and
(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.

Schedule IV:

(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in Schedule III;
(B) The drug or other substance has a currently accepted medical use in treatment in the United States; and
(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in Schedule III.

Schedule V:

(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in Schedule IV;
(B) The drug or other substance has a currently accepted medical use in treatment in the United States; and
(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in Schedule IV.

WHAT IS THE “OPEN FIELDS” DOCTRINE AND HOW DOES IT IMPACT THE DEFENSE OF A GEORGIA DRUG CHARGE?

The open fields doctrine is an exceptionally troubling aspect of our Fourth Amendment case law. Basically, any land or part of real estate outside of your home or the “curtilage” to your home is subject to a search without first obtaining a search warrant. Yes, under the current state of our law, law enforcement officers can trespass upon your property to perform a search and we cannot complain that a violation of the 4th Amendment occurred.

Many of our state appellate court judges has complained about the application of the open fields doctrine:

The primary genesis for Oliver lies in Hester v. United States, an extremely abbreviated decision that approved government entry onto private land by stating, without supporting analysis, that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open fields.” The only citation for this statement is a vague reference to Blackstone. While Blackstone enjoys a hallowed position in English jurisprudence, he should not govern Fourth Amendment reasoning; our history is different.

After citing Hester’s “open fields” doctrine, the Oliver Court further expanded the concept to property on which a landowner has taken steps to ensure privacy, broadly concluding that “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” What is the basis for Oliver’s limited view of privacy? What has deeper roots in our tradition of privacy than private ownership? Indeed, respect for private property is so ingrained in our jurisprudence that it enjoys special protections.

Morse v. State, 288 Ga. App. 725, 728, 655 S.E.2d 217, 219 (2007) (citations omitted).

Defenses to Possession of Drugs in an Automobile in Georgia

Every charge of Violating the Georgia Controlled Substances Act (VGCSA) by possessing an illegal substance requires proof beyond a reasonable doubt that the defendant actually knew that they were actually possessing the illegal substance. Particular attention needs to be given to those drug charges in which the defendant is alleged to possess illegal drugs that were not actually on the defendant’s person at the time of the arrest.

The criminal intent which the State is required to prove beyond a reasonable doubt is the intent to possess a drug with knowledge of the chemical identity of that drug. The State is required to establish beyond a reasonable doubt that the Defendant was in possession of the drug, which he knows himself to possess, when that drug is a controlled substance. Duvall v. State, 289 Ga. 540, 542, 712 S.E.2d 850, 851 (2011)

WHAT IS THE STATE’S ARGUMENT THAT THE DRIVER OF A VEHICLE POSSESSED DRUGS IN A VEHICLE BUT WERE NOT ACTUALLY ON THE PERSON AT THE TIME OF ARREST?

The contents of an automobile are presumed to be those of one who operates and is in charge of it. Williams v. State, 129 Ga.App. 103, 106, 198 S.E.2d 683 (1973). “Where immediate and exclusive possession of an automobile … is shown, the inference is authorized that the owner of such property is the owner of what is contained therein, and this inference has been referred to as a rebuttable presumption. [Cit.]” Watson v. State, 93 Ga.App. 368, 91 S.E.2d 832 (1956). Chambers v. State, 162 Ga. App. 722, 722-23, 293 S.E.2d 20, 21 (1982).

THE EQUAL ACCESS DEFENSE TO DRUG POSSESSION CHARGES IN GEORGIA

If the jury determines that a person or people other than the defendant had an equal opportunity to possess or place the illegal drugs in the vehicle, then the defendant should be acquitted, unless it is shown beyond a reasonable doubt that the defendant knowingly possessed the contraband or shared possession or control with another person and helped or procured the other person in possessing and having control of the contraband.

SO, DOES THE “OPEN FIELDS” DOCTRINE APPLY ONLY TO OPEN FIELDS?

Of course, as with most exceptions to the 4th amendment, once it was established as an exception, the government has inevitably sought to expand the application of the open fields doctrine. Morse v. State is one of the worst examples of this expansion. In Morse, the defendant unsuccessfully challenged a search of his unfinished home (!) based upon the open fields doctrine:

In this case, Morse took extensive steps to keep others from the property he owned. The right to own is the right to exclude.20 To *729 conclude-as we must under Oliver-that he had no reasonable “ expectation of privacy” strains credulity. Our Fourth Amendment analysis should focus on protecting against unwanted governmental intrusion. As explained by the Oliver dissenters, “[t]he Fourth Amendment, properly construed, embodies and gives effect to our collective sense **220 of the degree to which men and women, in civilized society, are entitled ‘to be let alone’ by their governments.”21

The far-reaching “open fields” doctrine threatens the integrity of the Fourth Amendment22 and turns the concept of reasonable privacy expectation on its head. Nevertheless, stare decisis compels us to apply the doctrine in this case. The record shows that the Henry County property consisted not of Morse’s dwelling, but of the area surrounding new, unfinished, and uninhabited construction. While the structure may have been on its way to becoming a constitutionally protected home, it was not a “dwelling” under the Fourth Amendment, nor did it have protected curtilage.23 And under governing case law, Morse’s efforts to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection.24 Pursuant to Oliver, the property fell within the “open fields” doctrine, and the officers’ entry was authorized.25

Morse v. State, 288 Ga. App. 725, 728-29, 655 S.E.2d 217, 219-20 (2007)

If you have question about the legality of a search in a Georgia drug charge case or other criminal case, contact The Sessions Law Firm at (470) 225-7710.

Am I eligible for conditional discharge for selling drugs in Georgia?

NO, THE CONDITIONAL DISCHARGE STATUTE IS INAPPLICABLE TO CHARGES OF DISTRIBUTING OR MANUFACTURING DRUGS IN GEORGIA.

The conditional discharge statute cannot be properly applied to a charge other than possessing drugs:

The unambiguous language of OCGA § 16–13–2(a) limits its application to those criminal defendants who plead guilty to or are convicted of drug possession.

“Possession … is defined as the right to exercise power over a corporeal thing.” (Citation and punctuation omitted.) State v. Jackson, 271 Ga. 5, 515 S.E.2d 386 (1999). On the other hand, “[m]anufacture means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance[.]” (Punctuation omitted.) OCGA § 16–13–21(15). By expressly mentioning only possession, the statute implicitly excludes other drug offenses, such as manufacturing. See Abdulkadir v. State, 279 Ga. 122, 123(2), 610 S.E.2d 50 (2005) (“Georgia law provides that the express mention of one thing in an Act or statute implies the exclusion of all other things.”) (footnote omitted).

Limiting the application of OCGA § 16–13–2(a) to drug possession is consistent with the legislative scheme criminalizing and punishing drug offenses. Notably, drug possession is criminalized by OCGA § 16–13–30(a). In contrast, OCGA § 16–13–30(b) prohibits manufacturing, delivering, distributing, dispensing, administering, selling, and possessing with intent to distribute any controlled substance. Moreover, Georgia law imposes much harsher penalties for these crimes than for mere possession. Compare OCGA § 16–13–30(c) and (d); see also Bassett v. Lemacks, 258 Ga. 367, 370(2), 370 S.E.2d 146 (1988).

State v. Barrow, 332 Ga. App. 353, 354, 772 S.E.2d 802, 803-04 (2015)

Should You Consider Taking Your Atlanta Drug Charge To Trial?

The decision as to whether a drug charge (or any criminal charge) should be presented to a jury is unquestionably the most difficult decision that a Georgia criminal defense lawyer and defendants have to address. However, in drug cases, particular, should be carefully considered before making the decision to enter a guilty plea.

In Atlanta (and throughout Georgia), many prosecutors recommend sentences that are much longer and harsher than any conceivable period of time that the defendant would actually serve incarcerated. What we continually see are prosecutors and Judges that are incentivized to impose exceptionally harsh sentences to satisfy the emotional desires of voters, and the Board of Pardons and Pardons and Paroles is left to clean up the mess. In fact, the Board of Pardons and Paroles is basically following the sentencing considerations that most lawyers think the trial judge follows. Consider this statement on the function of the Board of Pardons and Paroles provided by the agency:

Persons are sentenced to prison for four purposes: punishment, incapacitation, deterrence, and rehabilitation. A parole board studies the need for and accomplishment of each of these purposes in each case being considered. Justice demands that the handling of each case should be tailored to the crime and to the offender.

A parole board’s view of a case necessarily differs from that of a local court or law enforcement agency. The Board can compare the case with thousands of others statewide. The Board’s unique central position and authority allows it to reduce sentence disparity. Excessive harshness is more readily reduced, but excessive leniency in the form of a too-light confinement sentence may be corrected partially by parole denial.

SO, HOW DO YOU HAVE ANY IDEA WHAT ACTUAL SENTENCE YOU WILL SERVE ON A DRUG CHARGE IF CONVICTED?

Lawyers do not like to give parole advice to clients, but we cannot ignore the real world parole implications of a sentence. Ultimately, whether we accept a plea offer or go to trial on a Georgia felony drug charge has to be decided based, in part, on a consideration of parole eligibility.

The Parole Eligibility Guidelines provided by the Georgia Board of Pardons and Paroles has to be considered:

Level 1 VGCSA Felony Possession Drugs Parole Eligibility in Georgia

Frequently Asked Questions in Georgia Criminal Defense Law

• What is conditional discharge treatment in Georgia drug cases?

Contact Sessions & Fleischman Today Regarding Your Drug Charge Defense

Many of the clients that we represent with regard to drug charges have never been arrested before. As a result, many of those clients are embarrassed about the charge. That is understandable, but do not let embarrassment paralyze you. Let’s work together to limit the harm that comes from this charge.

Contact Sessions & Fleischman, LLC today for a free consultation. We’ll go over the details of your case and advise you of the best way to proceed.