Question: My son was arrested and charged with possession of drugs and possession of drugs with the intent to deliver.  He says that he didn’t even have the drugs on him.  He was driving his friend’s car when a police officer pulled him over.  The officer ended up searching the car and found drugs and money in a duffel bag in the trunk. My son says that he didn’t know about the drugs and money in the car and that they belong to his friend. He is not even sure why the police officer pulled him over.  How can the police officer search the car without a warrant?  Isn’t that illegal?  Also, how can he be charged with possession of drugs when they didn’t find the drugs on him?

Answer:  There are two types of drug possession charges in Philadelphia criminal drug cases: actual possession and constructive possession. Actual possession is when the drugs are found on the person.   Constructive possession is when the drugs are not found on the person.  Even though the drugs were not found on your son, he can be convicted of drug possession if the prosecution can prove constructive possession.

Constructive Possession of Drugs in Philadelphia

In constructive possession of drugs cases, the prosecution must prove certain legal elements in order for the defendant to be convicted.

First, the prosecution must prove that your son knew where the drugs were located, in or around the place where they were discovered.  Second, the prosecution has to prove that your son knew or should have known that the drugs were illegal.  Third, the prosecution must prove that your son had control of the drugs, i.e., the ability to control and move the drugs.

I would need to know more details surrounding your son’s arrest to determine whether the prosecution can prove its case.  For instance, even though the drugs were in his friend’s car, he can still be convicted if the following are true.

Let’s assume that your son was driving your friend’s car and has driven it many times before. Let’s also assume that your son knew that his friend had drugs in the trunk.  Lastly, let’s assume your son had the key to a small lock on the bag found in the trunk.  In such a case, the prosecution can argue that he had constructive possession of the drugs because he knew where the drugs were located, knew that they were illegal, and had the key to the locked bag found in a car he was driving.

Related: Drug Charges in Philadelphia PA State Court – Possession of a Controlled Substance

Search and Seizure Issues in Philadelphia Drug Cases

Even if all of the assumptions are true, there may be some legal issues, such as a search and seizure issue, which would prevent the prosecution from going forward with the case.  For instance, let’s assume the police officer stopped your son due to a traffic violation, i.e., speeding.

Pursuant to Philadelphia criminal law, a police officer can conduct a warrantless search of a car if he/she had probable cause to believe that evidence of a crime would be found in the car.  In order to have probable cause, there must exist sufficient facts that would lead a reasonable person to believe that criminal activity is about to happen or happened.

Let’s assume the following after the police officer pulled your son over:

• he saw your son reach down after he was pulled over,
• the car also smelled like drugs when he approached the vehicle, and
• your son was extremely nervous when the police officer simply asked him for license and registration.

With these facts, the police officer may have probable cause to search the car.  However, if these facts did not exist, the police officer would not have probable cause to search the car without a warrant.  In such a case, we would file a motion to suppress the evidence found in the search, i.e., the drugs and money in the duffel bag.  In other words, the prosecution cannot use the drugs and money found in the car against your son because they were obtained illegally.  Without the drugs and money, it would be rather difficult for the prosecution to prove a case against your son without any other evidence.

Whether there was probable cause depends on the circumstances of the traffic stop and what happened after.  Again, it would be best that you contact a Philadelphia criminal lawyer to discuss the case.  We offer FREE initial consultations.  Feel free to contact our office to schedule. 215.564.0644

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