March 30, 2014

David Nachtigall

Successfully defending a drug possession case in Texas is often a mixture of attacking the government’s proof of possession (the facts) and understanding search and seizure (the law). The two most common issues in a drug possession case are (1) whether the government can prove that a person actually “possessed” drugs as that term is defined under Texas law, and (2) whether law enforcement violated a constitutional or statutory right in the course of locating or retrieving the drugs.

“Possession” is defined under Texas Penal Code Sec. 1.07(39) as “actual care, custody, control, or management”. Law enforcement tends to be overzealous when it comes to charging individuals with drug possession. Merely because a person is in physical proximity to drugs does not mean that the government can prove possession – the government also has the burden to prove that a person had knowledge of the drugs. For example, the government may try to charge a passenger in a vehicle where the drugs are found in the glove compartment, but may struggle to prove that the passenger had knowledge of the drugs’ existence. On the other hand, simply because drugs are not found on a person does not mean that the government can never prove possession. The government’s proof of knowledge is often circumstantial and is based on the number of “links” it can prove between an individual and the drugs.

The second common issue in drug possession cases is whether law enforcement violated the 4th Amendment of the United States Constitution or Article 38.23 of The Texas Code of Criminal Procedure. The Fourth Amendment holds that citizens shall be free from unreasonable search and seizure. If law enforcement violates either the Constitutional or statutory law related to search and seizure, evidence of the drugs may be “thrown out” of the case, and the government loses because their key evidence is gone. The factual and legal issues in every case are different, but typical search and seizure violations include an officer stopping a vehicle or person for no legal reason or executing a defective search warrant.

The most common procedural mechanism for getting drug evidence thrown out is a motion to suppress evidence. A motion to suppress evidence is usually heard by the judge prior or during a trial. The government will call witnesses to testify about how law enforcement located the drugs, and after questioning by both sides, the attorneys will present their legal arguments for why the evidence should be admitted suppressed. If the evidence is suppressed, the government will generally dismiss its case.

If you are charged with a state or federal drug crime in Houston or the surrounding areas, it is important to contact a criminal defense attorney who has experience dealing with the factual and legal issues in drug cases.

© 2021 David A. Nachtigall, Attorney at Law, PLLC