The overwhelming majority of drug arrests in New Jersey originate with motor vehicle stops. However, persons, structures, even homes can be searched in certain circumstances. An understanding of search and seizure law is therefore critical for a New Jersey drug possession attorney.
However, assuming a search was justified and the results of the search cannot be suppressed, the next thing to to be assessed by your drug defense attorney is whether you were in “possession” of the substance within the meaning of the law.
The majority of CDS possession charges in New Jersey are governed by NJSA 2C:35-10. Possession, use or being under the influence, or failure to make lawful disposition. These charges are often accompanied by a complaint for possession of drug paraphernalia, contrary to NJSA 2C:36-2. This can be for possessing a pipe, bowl, stem, syringe and any other item used to ingest or inhale. I have represented individuals who have been charged with paraphernalia possession for items as seemingly benign as a pen, and even a tampon.
Criminal possession is said to mean “intentional control and dominion, the ability to affect physically and care for the item during a span of time” knowledge of the identity of what the item is. Such possession can be constructive rather than actual.
“Actual” possession is pretty straightforward. This means that the item or substance was usually on your person or under your direct control. “Constructive” possession is more complicated. This is where a drug defense attorney may decide your case is worth taking to trial after all pre-trial and search issues fail.
This should not suggest that the state can never prove possession when the drug or item is not on your person. Quite the contrary is true. Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists.
Moreover, possession can be jointly shared by several persons. Even in the absence of actual possession, a person may be viewed as being in “possession” of an item through constructive possession.
However, constructive possession cannot be based on mere presence at the place where contraband is located.
There must be other circumstances or statements of defendant permitting the inference of defendant’s control of the contraband.
In State v. Shipp, a vehicle was stopped for speeding on Route 80 on its way from New York to Cleveland, Ohio. A substantial quantity of heroin was being carried by a rear-seat passenger in a vinyl bag belonging to her and in which she had other personal belongings. The front seat passenger was her son-in-law. The New Jersey Supreme Court reversed the son-in-law’s conviction, which had been based on constructive possession, concluding, despite the family relationship, that “defendant’s presence in the automobile under [these] circumstances . . . does not suffice to authorize an inference that he was sharing in the intentional control and dominion over the contraband material.” Id. at 666. The court also held that “[m]ere knowledge, without more, on the part of one automobile passenger that a co-passenger is carrying illicit drugs does not constitute the former a co-possessor.” Ibid.
In State v. Palacio, there an automobile was stopped for speeding on Route 40 in Pennsville. Both driver and passenger were Florida residents. Because the driver had what seemed to the officer to be drug paraphernalia on his person, both he and his passenger were asked to step out of the car. During the trooper’s ensuing questioning, the passenger appeared to him to be “sweating, moving in circles,” and “overly nervous.” As the vehicle was being searched after back-up officers arrived, the officer believed both the driver and passenger to be acting suspiciously as they watched the proceedings. Although both apparently spoke English, they conversed together in Spanish for the presumed reason of concealing the content of their conversation from the police. The search revealed a secret compartment in the trunk containing fifteen pounds of cocaine having a street value of close to one million dollars.
The New Jersey Supreme Court held that because of the monetary value of the drugs, which it characterized as “infinitely greater” than that involved in Shipp, it was unlikely that the driver would have anyone other than a confederate in the car with him, particularly on so long a trip as from Florida to New Jersey. The court also placed significant emphasis on the passenger’s untoward behavior, namely, his extreme nervousness, his suspicious conduct during the search, and his conversing in a language the police would not understand.
Possession of a controlled substance charges in New Jersey are graded according to a schedule. Basically, possession of any commonly used substance (other than marijuana and hashish), is a crime (felony) in the third degree. This includes cocaine, heroin, oxycontin, and ecstasy. A third degree crime is punishable by 3-5 years of prison, up to a $35,000 fine (in drug cases), although a presumption of non-imprisonment applies to first-time time offenders. All drug charges in New Jersey also carry a mandatory minimum 6-month drivers’ license suspension regardless of whether the offense took place in a car.
New Jersey’s basis drug possession statute reads as follows:
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:
Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.
b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.
c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
An experienced drug possession attorney will demand that police produce every piece of evidence they have against you. The state must also produce all evidence that is in their possession that may help your defense under Brady v. Maryland. After carefully reviewing all evidence in your case, we will devise your best strategy for defending against the charges. Some typical charges include:
There are other challenges that can be made depending on the facts of the case. Diversionary programs may also exist for some first-time offenders. An experienced New Jersey CDS possession lawyer can help guide you through this process and make sure that your rights are protected.
Don’t let being arrested for drug charges in NJ put your life on hold. I am experienced in many areas of criminal defense and have offices across the state in order to best serve you. Contact The Law Offices of Anthony J. Vecchio, LLC experienced Drug Charges Lawyer today to set up a consultation.
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