Virginia contraband defense- Fairfax criminal lawyer warns against being near illegal drugs, incriminatory weapons, and other evidence of criminal activity

Virginia contraband defense commonly includes arguing a failure of the assistant commonwealth’s attorney / prosecutor to prove beyond a reasonable doubt (BRD) that the defendant had knowledge, dominion and control over the alleged contraband.  As a Fairfax drug lawyer, I know that convicting the accused for possession of such contraband as illegal drugs, incriminatory weapons or other evidence of criminal activity requires knowledge, dominion and control over such items: In “order for ownership or occupancy of property or of a vehicle to be sufficient to support the inference that the owner or occupant also possessed contraband that was located on the property or in the vehicle, the owner or occupant must be shown to have exercised dominion and control over the premises and to have known of the presence, nature, and character of the contraband at the time of such ownership or occupancy.” Burchette v. Commonwealth of Virginia, 15 Va.App. 432, 434,  425 S.E.2d 81, 84 (1992). 

Virginia contraband defense starts with avoiding risky people and situations

Virginia contraband defense starts with avoiding risky people and situations. Think twice about staying in any locations where you witness people possessing or using illegal drugs, unlawfully using firearms, or possessing stolen property. Use your instincts and common sense about whether you are near people who might do so. Not be be a killjoy, but avoid hitchhiking and picking up hitchhikers or other strangers if you can. A perfect example of stranger danger — and even non-stranger danger — here is to emblazon in your mind what happens if a police officer stops a car that you occupy with others who possess contraband. Do not be surprised if the person flings their controlled substances, weapons or other contraband as far away as possible from them, which risks you getting fingered by police as having had alleged constructive possession of the substance. Watch out also when a car passenger intentionally leaves their contraband in your car for such reasons as not wanting to get caught with it, having it roll out of their pocket, or having stepped on cocaine or other illegal drugs and tracked that drug into your car. Why risk any of these scenarios?

Why can’t I simply tell the police that the contraband does not belong to me?

In college, one of my roommates was selling marijuana from our dormroom. The advice I got back about my concern against my getting into court trouble for his criminal activity was stratospherically off the mark: “If your drug selling roommate is a decent guy, he will tell the police that you had nothing to do with his pot sales.” How naive, offbase, unhelpful and wrong was that advice. If a Virginia contraband defendant comes to me and tells me that his or her innocent roommates have been dragnet-arrested along with him, I will ask: “Did your roommates know you possessed drugs in your mutual dwelling?” If the answer is yes, then I am ready to tell my client that they could have moved out and did not, and that this is not the time for this defendant to fall on his or her own sword. (As an aside, the police never bothered me nor my roommate.)

Expect no safe harbor against a constructive contraband possession conviction, but be ready to pounce when charged with constructive possession

Police and many prosecutors have a penchant for dragnet arrests and dragnet prosecutions of those found near Virginia contraband. No matter how much havoc such an approach can have on a Virginia criminal defendant, the attitude of many police and assistant commonwealth’s attorneys is that the judge and/or jury can sort out the matter, with or without the criminal defendant’s testimony. Fortunately, the Virginia Court of Appeals provides us a roadmap in the above-referenced Burchette case for pouncing against such prosecutions, including: “Evidence that Burchette owned the parked vehicle from which the drugs were seized and that he walked by it in going from his residence to another vehicle is insufficient to prove that he knew the illegal drugs were in the vehicle. The Commonwealth presented no evidence from which one reasonably could infer that Burchette occupied the vehicle or had exercised dominion over it while the marijuana was present in it. The evidence failed to show either when Burchette may have used or occupied the vehicle or when or for how long the drugs or paraphernalia had been in it. The evidence failed to show that Burchette was the exclusive or primary operator of the vehicle, or that he possessed a set of keys to the vehicle, or when or by whom the vehicle had been most recently operated or occupied. The circumstances were not such that one reasonably could infer, to the exclusion of other reasonable hypotheses, that Burchette, as the owner of the vehicle, knew of the presence, nature and character of the contraband that was found in it.” Burchette,  15 Va. App. at 436. Compare the foregoing scenario to Jaquan Carter’s, where the Virginia Court of Appeals (unpublished) affirmed his conviction for being a convicted felon in possession of a firearm, where he kept moving around the automobile console area where police found ammunition and a handgun, and when he and his passenger switched positions in the car.  Carter v. Commonwealth of Virginia, Record No. 0751-23-3, 2024 WL 1863660 (Va. App. 2024) (unpublished). 

What must I do if charged with a Virginia drug, weapon or other contraband violation?

When charged with a Virginia contraband violation, do not delay in obtaining the best possible lawyer for you. Fairfax drug lawyer Jonathan Katz started his criminal defense practice in large part due to his opposition to the drug wars, the toll they take on people’s Constitutional rights, and the havoc they wreak on people’s lives. When you have Jon Katz on your side as a criminal defendant, you have the peace of mind that Jon is fully devoted to you and your cause. Start your road in pursuing your best defense by calling 703-383-1100 for your free in-person initial confidential consultation with Jon about your court-pending prosecution. Jon usually can meet with you the same day you call, or else the next business day.