Five Common Defenses in Possession Cases (and One Bennett Special)
Texas treats a lot of things as contraband—controlled substances, firearms in the wrong hands, child sexual abuse material, and others—and the elements of every possession charge are short. Every one of those elements is something the State has to prove beyond a reasonable doubt, and every one is a place to attack the case. Below are the five most common defenses in possession cases, plus one that is not common enough.
1. I didn’t possess it
Possession is a legal term, not a physical one. The State has to prove that the defendant exercised actual care, custody, control, or management over the substance—not just that he was nearby.
The State frequently charges everyone who was present when the drugs were found—in the car, in the room—on the theory that the indictment is cheap and the disposition can be sorted out later. A driver does not necessarily possess the meth in the passenger’s purse. A roommate does not necessarily possess the cocaine in the other roommate’s nightstand. The case turns on *affirmative links*, what the State can prove links the defendant to the substance: fingerprints, the defendant’s belongings near the drugs, statements at the scene, behavior on the body-camera video.
When the link is weak, the case is weak.
2. I didn’t know I possessed it
Possession is a knowing offense. The State has to prove that the defendant knew the substance was there. A passenger handed a backpack does not necessarily know what is inside. A driver who borrowed the car does not necessarily know what is under the seat.
This defense lives or dies on context. Whose property is it? Who else had access? Who put the substance there? What does the defendant’s behavior at the moment of discovery look like? What did the defendant say when asked? Police reports and body-camera video usually hand the defense the answer.
3. It wasn’t contraband
Whatever the State says the defendant possessed, the State has to prove that the thing fits the legal definition. The category drives the questions. The three categories below are the most common; the same analysis applies to any possession charge.
Drugs. The State has to prove that the substance is actually a controlled substance in the charged penalty group, in the charged quantity. Field tests are unreliable. Crime-lab tests can be challenged on chain of custody, on testing methodology, and on the analyst’s qualifications. Hemp and marijuana are chemically distinguishable only by THC concentration; post-2019 Texas hemp law has made every marijuana case turn on whether the State can prove THC content above the legal threshold.
Guns. The State has to prove that the object is actually a firearm under the controlling statute, that it was operable when the offense requires that, and—for prohibited-person charges (felon in possession, family-violence prohibition, protective-order prohibition)—that the defendant was actually a prohibited person at the time. Antique-firearm exemptions, parts and components below the statutory definition, and improperly characterized accessories are all places these cases break down.
Child sexual abuse material. The State has to prove that the depicted person was actually a minor at the time the image was made, and that the file is what the indictment says it is. Cached files, automatically downloaded thumbnails, browser-prefetched images, and files no one ever opened are different from the kind of intentional storage the statute contemplates. Hash-match catalogs and forensic chain of custody can both be challenged, and so can the State’s attribution of a file to a particular user on a particular device.
The starting question is always the same: what is the State’s proof on the thing itself?
4. I didn’t know it was contraband
Knowing the substance is there is not the same as knowing it is illegal. The State has to prove both. A defendant who believed the powder was sugar, or that the pills were aspirin, or that the substance was a legal supplement, has not committed the offense even if he was holding the bag.
This defense rises and falls with the defendant’s specific knowledge, which is usually inferred from circumstances. Where did the substance come from? What did it look like? What did the defendant do with it? What did he say about it? Most of those facts come from the police investigation, which is often less complete than the State wishes.
5. Motion to suppress
The Fourth Amendment to the United States Constitution and article 38.23 of the Texas Code of Criminal Procedure both exclude evidence obtained by an illegal search or seizure. If the police got the contraband by violating the law, the State cannot use the contraband at trial. No contraband in evidence, no possession case.
Suppression challenges turn on the details of the stop, the search, and the warrant if there was one. Was the traffic stop justified? Was the prolongation of the stop justified? Was the consent voluntary? Was there probable cause? Was the warrant supported by sufficient facts? Each question can win the case at a pretrial hearing.
A successful motion to suppress in a possession case usually ends the prosecution. See our motion to suppress page.
The Bennett Special: turning over rocks
Sometimes there will be something—for example an informant’s identity or a DEA offense report—that the defense is entitled to but that the State does not want to or cannot provide. Finding what that thing is, and putting the pressure on the State to provide it or dismiss, will often make the case go away.
Talk to us
If you or someone you love has been arrested for a possession charge, and you are ready to hire us, call. 713-224-1747.