Many young people live with roommates, and some of those roommates may use, deal, or possess illegal drugs. You can't always control what a roommate does — and not everyone is in a financial position to be selective about who they live with. The good news is that just because your roommate has or uses drugs doesn't automatically mean you're in legal jeopardy. For more on the legal issues discussed here, see our drug crime defense overview and What is Possession of a Controlled Substance in Indiana? guide.
That said, the answer isn't always simple.
__Actual vs. Constructive Possession__
When drugs are found on someone's person — in their pocket, for example — that's called actual possession, and it's usually clear who's responsible. This article focuses on a trickier scenario: drugs found somewhere in a shared home, like in a drawer or closet. In that situation, the legal question becomes one of constructive possession.
Constructive possession means someone had both the (1) capability and (2) intent to maintain control over the drugs — even without physically holding them.
__Capability__
For anyone with a rental or ownership interest in the home, the capability element is relatively easy for prosecutors to establish. Courts have held that simply having a possessory interest in the property — meaning your name is on the lease — is enough to satisfy this prong. In other words, if you live there, you're deemed capable of controlling what's in it.
__Intent__
The intent element is where things get more nuanced, especially in shared living situations. When multiple people live in a home, courts treat it as a non-exclusive premises, meaning everyone has equal access. Because of that, prosecutors must show evidence that you actually knew the drugs were there.
Courts consider any relevant evidence, but have identified six key factors:
1.Incriminating statements made by the defendant
2.Attempted flight or furtive gestures
3.Circumstances suggesting the location was used for manufacturing
4.Proximity of the drugs to the defendant
5.Whether the drugs were in the defendant's plain view
6.Whether the drugs were mixed in with the defendant's belongings
Courts also weigh heavily whether the defendant was present when the drugs were discovered.
__What This Means in Practice__
Knowing your roommate uses drugs is generally not enough to prove you knew drugs were present at a specific moment. And if the drugs are hidden in your roommate's private space — their bedroom closet, for instance — it's unlikely you'd be found in constructive possession.
The harder cases arise when drugs are found in a common area. If drugs are sitting in plain view in a shared space and you're home when law enforcement finds them, there's a very real chance you'll be charged — and potentially convicted — even if the drugs weren't yours.
The same constructive possession analysis applies to drugs found in a car with multiple occupants. Often, the person sitting closest to the drugs ends up charged. However, factors like whether the drugs were hidden and whether that person owns the vehicle can shift the outcome.
Every situation is different, and courts have broad discretion to weigh any relevant factor when determining whether someone had the intent and capability to control contraband.
__Call Mo Today for a Free Consultation__
Getting caught with possession of drugs could have severe consequences, so it is important to get an attorney that knows how to handle your case. If you or a loved one are facing criminal charges in Indiana, give Mo a call today.
Available 24/7 at mo@moalmahareeqlaw.com or by calling (347) 889-4944.
Written by
Moawia K. AlMahareeq