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Possession Of Marijuana and ‘Guilty By Association’ | For the Record Legal Blog

While there is no such thing as “guilty by association” in the criminal context, this may be a situation where the people that you associate with can create legal issues.

In Indiana, possession can be proven two ways:


1) actual possession and
2) constructive possession.


Actual possession is exactly that, the person has direct physical control of the item. For example, a police officer performs a pat down search of your person and finds marijuana in your pocket. You will be charged with possession of marijuana and prosecuted under actual possession. On the other hand, constructive possession allows the prosecutor to cast the net a little farther.

A person is in constructive possession of an item if

1) he or she has the intent to maintain dominion and control over the item and
2) has the ability to maintain dominion and control over the item.

The proof of a possessory interest in the premises of where the item is found is sufficient to satisfy the second prong of constructive possession, regardless of whether the control of the premises is exclusive. However, when the possession of the premises on where the item is found is not exclusive, then the inference of intent to maintain dominion and control over the item must be supported by additional evidence of the person’s knowledge of the incriminating nature of the item and their presence.

The Courts have established several factors to consider in determining the intent prong:


1) incriminating statements made by the person,
2) attempted flight or furtive gestures,
3) location of substances like drugs in settings that suggest manufacturing,
4) proximity of the contraband to the defendant,
5) location of the contraband within the defendant’s plain view, and
6) the mingling of the contraband with other items owned by the defendant.


Furthermore, both actual and constructive possession can be sole or joint. If one person has actual or constructive possession of an item, then possession is sole. If two or more persons share actual or constructive possession of an item, then possession is joint.

In this case, the marijuana was found on a coffee table in the living room and no marijuana was found on her person. Therefore, if the State wished to prosecute this case, they would have to do so under the theory of constructive possession. She was a tenant of the house and; therefore, had possessory interest in the house. Furthermore, the incriminating nature of the marijuana is obvious and it was located in plain view in the living room. Assuming for the purposes of this analysis that the search was valid, it appears that the State would have enough evidence to charge her with possession of marijuana. Depending on the weight of the marijuana and whether she had any prior drug offenses, this charge would begin as a Class B Misdemeanor.

Another charge the State likes to use to increase the offense is Maintaining a Common Nuisance. Maintaining a Common Nuisance is a Level 6 Felony. A Common Nuisance is defined by statute as: a building, structure, vehicle or other place that is used “to unlawfully use, manufacture, keep, offer for sale, sell, deliver of finance the delivery of a controlled substance.” Luckily the legislature amended the statute recently to provide a defense if the substance was less than 30 grams of marijuana or paraphernalia that is designed to be used for marijuana.

Prior to this amendment, if you were found to have marijuana while walking down the street, you would be charged with a Class B Misdemeanor. However, if you were driving in your car and were found with the same marijuana, the State would charge you with a Level 6 Felony, Maintaining a Common Nuisance. Assuming the weight of marijuana in this case was less than 30 grams and further assuming she had no prior drug offense, the State would be unsuccessful if they attempted to charge her with this crime.

If you or a family member have been arrested and charged with a crime or is the subject of a criminal investigation, call the experienced trial lawyers at King, Brown & Murdaugh, LLC for a free initial consultation.

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