Nearness impacts drug culpability, along with the totality of the circumstances, says Fairfax criminal lawyer

Nearness and distance from controlled substances and are among the critical considerations in Virginia drug defense and all other contraband defense. As a Fairfax criminal lawyer, I know that the mere existence of contraband at one’s residence is not enough, by itself, to obtain a conviction. Davis v. Commonwealth of Virginia, Record No. 1568-24-1 (Va. App. Oct. 28, 2025) (unpublished).

Prosecutorial incantations about nearness to contraband are not enough by themselves to convict for drug possession

Prosecutorial and police incantations about nearness of a criminal defendant to contraband are not enough by themselves to convict for drug possession. Instead: “Here, Davis was outside the residence when the police arrived] [to arrest him and execute a search warrant of the residence. No drugs or firearms were found on his person. There is no evidence Davis attempted to flee. The drugs and firearm were found in a common area of the home. The drugs were not in plain view but inside a sealed duffle bag. None of Davis’s mail was found inside the duffel bag where the drugs were concealed. While the evidence showed both Davis and his aunt stayed in the home, there was no evidence about who else may have lived in the home or recently visited. There is no evidence as to when Davis was last in the home, when or how his mail came to be in the common area or when the drugs and gun were put there. Too, no forensic evidence ties Davis to the gun, the closed duffel bag or the drugs inside the duffel bag.” Davis. 

Culpability for contraband possession requires knowledge, dominion and control

As a Fairfax criminal lawyer, I know that culpability for contraband possession requires knowledge, dominion and control by the Virginia criminal defendant over the contraband, and not mere nearness to the contraband: “Thus, the Commonwealth was required to establish beyond a reasonable doubt that Davis knew that cocaine was inside the duffle bag in the living room of his aunt’s house and that bag was subject to his dominion and control.” Davis.

What should I do if prosecuted for a Virginia drug offense?

Notice how Davis’s defense of mere nearness to the contraband-containing residence, and lack of proof beyond a reasonable doubt of knowledge, dominion and control over beyond four grams of cocaine was not enough to avoid his escaping a conviction, and that only his appealing that conviction got him a reversal of his conviction. Consequently, Virginia drug defendants and all other criminal defendants need a qualified attorney to pursue their best defense. Fairfax criminal lawyer Jonathan Katz has successfully defended thousands of criminal defendants, including hundreds of felony and misdemeanor drug defendants. Jon Katz sees the drug wars as the cause of a slew of civil liberties violations that call for a full court press in court.

For your free initial in-person confidential consultation with Jon Katz about your court-pending Virginia felony, misdemeanor or DUI prosecution, call 703-383-1100, Info@Katzjustice.com or (text) 571-406-7268. Usually Jon’s staff will be able to schedule you to meet with Jon within one business day of your contacting us.