Contraband prosecutions are a risk anytime you are near illegal items, says Fairfax criminal lawyer

Contraband prosecutions abound in Virginia, whether that be for drugs, allegedly possessed weapons, allegedly stolen items, cigarettes destined for the gray or black market, or anything else. As a Fairfax criminal lawyer, I know how risk it is for you to be with people, at places or in cars that might have contraband nearby. It can be better to walk or hire an Uber than hitch a ride with someone you barely know or do not know, if their vehicle contains contraband. If you know illegal drugs are at a gathering, you are taking your own risk not to leave. If you know someone loves to shoplift, be careful entering their home. I am not trying to be a killjoy here. Instead, I simply do not want your joy killed by an arrest, prosecution and even conviction that could have been avoided in the first place by simply completely distancing yourself from the contraband.

What happened with contraband prosecutions, to the presumption of innocence unless found guilty beyond a reasonable doubt?

If you want to see what dragnetted contraband prosecutions look like, then proceed contrary to the above paragraph. The Virginia Court of Appeals lies bare that presumption of innocence is no bar to your being convicted for possessing contraband when you are found nearby such items. Fells v. Virginia, Record No. 0649-24-4 (Va. App. 2025) (unpublished) (affirming conviction for being a convicted felon in possession of a firearm under Virginia Code § 18.2-308.2 .Police found Fells as the sole occupant of a vehicle in a stationary position at a gas station, with only one license tag, listed as stolen. Fells told police it was his wife’s car. Upon inventorying the car before transporting it away, police found a firearm under a floor mat behind the driver’s seat. Police got Fells to admit he was a convicted felon. When questioned about the recovered firearm, Fells asserted that he had gotten his firearm rights restored. A police officer sat in the driver’s seat to confirm that the firearm was within arm’s reach of the person sitting there. Fells affirms his firearm possession conviction starting with his being the car’s sole occupant and being within arm’s length, together with letting the jury infer that his foregoing statements permitted a conviction: “In the case at hand, the Commonwealth established that Fells was the driver and sole occupant of the minivan in which a firearm was found under a floormat within reach of the driver’s seat. Although these factors do not conclusively establish that he possessed the firearm, they are probative of a finding that he did so… Moreover, the jury could consider Fells’s statements to Detective Isaacs as additional evidence that he was aware of the character and presence of the firearm.” Fells. 

Can I be liable for contraband that nobody even sees me touch?

Yes. You can be convicted in contraband prosecutions, for possessing contraband even if nobody has seen you touch it and even if your fingerprints nor DNA are found thereon. A conviction without being seen with the contraband would be based on a theory of constructive possession and circumstantial evidence. “To convict a defendant of unlawfully possessing a firearm [or any contraband], ‘the Commonwealth must prove beyond a reasonable doubt that the accused was aware of the presence and character of the [firearm] and that the accused consciously possessed it.’… ‘Possession and not ownership is the vital issue.’ .. “In proving possession, as with any other element, “circumstantial evidence is competent and is entitled to as much weight as direct evidence[,] provided that the circumstantial evidence is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.’ Further, ‘[p]roof of actual possession is not required; proof of constructive possession will suffice…. The Commonwealth proves that a defendant constructively possessed a firearm by establishing ‘acts, statements, or conduct by the defendant or other facts and circumstances proving that the defendant was aware of the presence and character of the firearm and that the firearm was subject to his dominion and control.’ ‘While the Commonwealth does not meet its burden of proof simply by showing the defendant’s proximity to the firearm, it is a circumstance probative of possession and may be considered as a factor in determining whether the defendant possessed the firearm.’ … See Hall v. Commonwealth, 69 Va. App. 437, 448 (2018) (holding that ‘ownership or occupancy of premises on which the [firearm] is found’ and ‘proximity to’ the firearm ‘are probative factors to be considered in determining whether the totality of the circumstances supports a finding of possession’).” Fells (citations omitted). In other words, beware being anywhere near contraband.

Can I talk my way out of an arrest and conviction?

Fells tried telling the police that he had restored his right to possess firearms (apparently he had not.) Look where that got him. In fact, Fells points out the conviction pickle he helped get himself into by not asserting his Fifth Amendment Constitutional right to remain silent, even though the police had issued him his Miranda rights to remain silent and to require the presence of a lawyer before speaking with police. Let Fells’s misery of a conviction and incarceration time be your lesson not to try to talk yourself out of contraband prosecutions.

Fairfax criminal lawyer Jonathan Katz knows that the courthouse is not a level playing field, at least not at the beginning. Jon Katz harnesses his experience, dedication to his clients, skill and ability to reverse the unlevel playing field in pursuing your best defense against Virginia criminal and DUI prosecutions. Find out for yourself the great defense that Jon Katz will deliver for you, through your free in-person confidential consultation with Jon about your court-pending case, at 703-383-1100, Info@KatzJustice.com, and (text) 571-406-7268.