Drug proximity can be your undoing, warns Fairfax criminal lawyer

Drug proximity can be risky, unless possessed lawfully by prescription or as over the counter products. As a Fairfax criminal lawyer, I know that police do not hesitate to arrest everyone near controlled substances, and to let the criminal defendants argue why they are not culpable. A person who has no need to be near contraband can be playing with fire to knowingly or recklessly being near them. A person who knows they possess contraband increases the risk of law enforcement officer (LEO) discovery of that contraband  by engaging in other unlawful or risky behavior. Alvin Antoinne Johnson provides a classic example of all of that. Johnson v. Commonwealth of Virginia, Record No. 1964-23-2 (Va. App. 2025) (unpublished).

Why would a person in drug proximity make themselves stand out like a sore thumb?

Police went to the area where a bald “male with a red hoodie had [reportedly] committed a carjacking and was last seen running in that area. When [police officer] Bertsch arrived at that location, he saw an SUV stop suddenly in the middle of the street. A Black male holding a red jacket, later identified as Johnson, ran from between two houses and jumped into the back of the SUV. The SUV drove away with the back door still open. Bertsch stopped the vehicle. When Bertsch approached, Johnson was lying across both back seats and moving his arms around underneath his body.” Underneath Johnson was a red hoodie, with a loaded firearm in its pocket. Under the jacket was a white towel containing a bag with a film canister containing nearly 18 grams of a mixture of heroin and fentanyl. Johnson had razor blades in his pockets, which can be used to separate drug dosages. Johnson. Assuming for argument’s sake that Johnson had committed the reported carjacking, he was foolish to have put himself in drug proximity and near a firearm, let alone a loaded one. Plenty of crimes are not well planned, which makes my job as a Fairfax criminal lawyer all the more challenging and in need of finding creative arguments and solutions.

How does a Virginia drug defendant successfully argue reasonable doubt against charges of possessing contraband?

Contraband possession is defined as knowledge, dominion and control over the item(s). Johnson. That determination ordinarily will be for the factfinder(s) — whether a jury or a judge at a bench trial — and not for appellate relief. Johnson waived a jury trial, and his judge convicted him of possession of heroin and fentanyl with the intent to distribute in violation of Virginia Code § 18.2-248 , and possession of a firearm while possessing a controlled substance, in violation of Virginia Code § 18.2-308.4. Apparently Johnson did not talk with police, which did leave a possible argument that he simply did not know about the presence of the contraband. Weighing against such an argument, with the gun, was the very weight of the gun in the red hoodie that he was reportedly carrying. A possible argument that he did not know about the presence of the heroin-fentanyl combination is that he did not have x-ray vision to know what was wrapped in the towel underneath him. A possible prosecutorial response to such an argument could have been Johnson’s drug proximity, and that in Johnson’s own pockets was nearly $500 in small bills, razor blades (which can be used to separate drug dosages) and a “a large quantity” of blank lottery tickets, which a drug expert testified are often used for packaging illegal drugs. 

Is it worth fully fighting a drug prosecution even when it looks like an uphill battle?

When you are a Virginia drug defendant, your fight has just begun, regardless of your drug proximity. Obtain the best possible criminal defense lawyer for your defense. Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of drug defendants for charges of trafficking, manufacturing, possession, and use. Jon Katz leaves no stone unturned in your drug defense, combing for challenges of Fourth Amendment-violative searches and seizures, deficiencies in chain of custody, errors with drug analysis, and insufficient evidence. Call 703-383-1100, Info@KatzJustice.com, and (text) 571-406-7268 for your free initial confidential consultation with Jon about your court-pending Virginia felony, misdemeanor or DUI prosecution.