Mere Presence: You Can Be Found “Not Guilty” Even if You Are Next to the Drugs!

Mere Presence: You Can Be Found “Not Guilty” Even if You Are Next to the Drugs!By: Joseph S. Mitchell, Esq. “Your Harvard Attorney”
In this article, we will be exploring whether police can find someone guilty for merely being present on the scene where drugs are found. In fact, what constitutes “mere presence” is quite astonishing according to a recent case in the Third Circuit.
In the case of United States v Shawn Jenkins, 9F.3d 814 (3rd Cir1996), it appears that mere presence is a very liberal concept. In order to be found guilty of possession of drugs or possession with intent to deliver, a person must have “dominion and control” over the drug.
Merely being present without the dominion and control over the drugs means that the Commonwealth has not proved that that person is involved in a conspiracy or in possession of the drugs. (While this is a Federal case, it does hold substantial weight in State Courts. I won a case recently using it.)
The details of the case are as follows. Around 1:30am, Philadelphia police officers responded to a call that shots were being fired near an apartment building. The police entered the courtyard, and saw a man holding a handgun. The man ran into the building and the officers chased him through a fire escape, down a hallway, and into an apartment. The front door of the apartment opened into the living room, and the officers found two men seated on a couch, both wearing only boxer shorts and a t-shirt. On the coffee table before them was three bags of white powder, containing a total of 55.3 grams of cocaine and 42 grams of non-cocaine white powder, two triple beam scales, two loaded .38 caliber revolvers, small ziploc-style bags, clear plastic vials, and numerous red caps. On the floor was a loaded, sawed-off shotgun.
The jury found them guilty but the appellate court reversed the decision, finding that the defendants were “merely present”. They held that "mere proximity to drugs, or mere presence on the property where it is located, or mere association with the person, who does control the drugs or the property, does not establish dominion and control." This means that unless the drugs are on someone, there can be an argument that there is not dominion and control and that they are merely present where the drugs are. This is a very important case for many of the situations that come up in houses where search warrants are executed and there are multiple people in the house.
Attorney Joe Mitchell “Your Harvard Attorney” has fought against prosecutors in drug cases for over 10 years. His strategic approach and knowledge of law are his trademark. Attorney Mitchell offers free 15-minute phone consultations and has reasonable rates with payment plans available. Contact us at : 215-557-7111 or visit our web site at www.joemitchellattorney.com

Detainers

HOW TO MAKE SURE YOU DON’T FALL INTO THE DETAINER TRAP

By Joseph Mitchell, Esquire

My name is Attorney Joseph Mitchell, “Your Harvard Attorney”. I am committed to giving people accused of crimes vital information about the practicalities of the criminal system in Philadelphia. As a public service, I have put together a series of articles on practical aspects of criminal law. Please tell others about this information, and send me your questions so I can create useful articles for you in the future. My contact information is at the end of the article.

WHY DO PROBATION OFFICERS LODGE THOSE NASTY DETAINERS?

A detainer is an order which is lodged on someone on probation sometime after he has newly been arrested, usually by a Probation Officer or a Judge. A new arrest by itself is a technical Violation of Probation, and after a due process hearing, the Judge has a right to keep an arrestee in jail until the new charges have been resolved. If you are on probation and you are arrested, there is a strong possibility that a detainer will be lodged against you which will not allow you to get out on bail even if you pay it.

It is very important to realize that the payment of bail does not guarantee that someone will get out and stay out. If there is a detainer, paying bail won’t do anything towards getting you out. Even if you have posted bail and gotten out, if you are on probation that doesn’t mean you will stay out. Quite often a client has come to me and has paid their bail, however; as soon as they get out and see their Probation Officer they are rearrested on a detainer, which was lodged by the Probation Officer. The negative effect of this is as follows and read carefully: once you’ve paid bail, the time that you spend in jail does not count as time served for the case which you paid bail on. It is important to tell your relatives and realize that if you are arrested on circumstances where a detainer might be lodged and you paid bail, you have to be very careful.

If this happens to you, the solution is to ask the Judge who has issued the detainer to revoke your bail. Do this immediately. That way you are able to get credit for the time you served while the detainer is lodged.

AND NOW THE BAD NEWS

Quite often, once a detainer is lodged, unless there is a detainer hearing and the detainer is lifted, the detainer will remain in effect until the new case is resolved. In some cases, a detainer can be removed by the Judge who issued it, however in the case of a detainer lodged by state authorities, due to being on state as opposed to county parole, it will often be impossible to have the detainer lifted by a Judge. When the state detainer has been lodged on you, the detainer must be reviewed by the Board of Parole and Pardons, which does not happen in Philadelphia. When a state detainer is lodged based upon a state parole violation, in most cases the defendant is shipped back to the prison where he was originally housed until the completion of the case.

AND THE GOOD NEWS

If it is a violation of county probation, many times it is possible to have a Judge lift the detainer. Whether the Judge will lift the detainer depends on a number of factors.

Perhaps, the most important factor is your relationship with your Probation Officer. If your Probation Officer is in favor of having your detainer lifted then you have a good chance. However, if you haven’t been reported faithfully, or if you have had a few “hot” urines, any other technical violations, or haven’t paid your fines and costs, then there is a possibility that the Probation Officer will not recommend that the detainer be lifted and you will have a much harder struggle. If you want to have a detainer lifted, you will have to hire a competent attorney to go into the Judge and put your very best foot forward. FOOTNOTE: If you are on probation and on the street, pay something on your fines and costs, report faithfully and keep a good relationship with your Probation Officer. It may be you “Get Out of Jail Free” card. Feel free to contact me to discuss your situation.

Another factor for whether a judge will remove a detainer and allowing you to pay bail and be released is the nature of the crime. If it is a similar crime to the one that you are on probation for, you have a lesser chance of being freed. Also, whether or not you have a job, have been paying your fines and costs, and have been reporting are important factors in this whole matter.

HERE’S SOME SOUND ADVICE

If you have a new arrest and are not in custody, it is very important that you contact your probation officer and ask him that he not place a detainer on you. Almost all of the detainers on county probation are issued by the probation officers and if you are able to convince him not to put the detainer on you, then you can be out of custody on bail for the duration of your new case, which could be 6 months to a year in some cases. If your new case gets dismissed or you beat it, you can save yourself some significant jail time by being smart.

If you have any questions about detainers, their effect or how to have them removed, please write, call or email Attorney Joseph Mitchell for straight answers to important questions.

Joseph S. Mitchell III, Esquire
"Your Harvard Attorney"
Aggressively Representing the Injured and the Accused
2 Penn Center, Suite 520
Philadelphia, PA 19102
215-557-7111
215-557-7260 Fax
www.joemitchellattorney.com

Information on Bail in Philadelphia

An informational video by Attorney Joe Mitchell covering frequently asked questions on bail procedures in Philadelphia.

Please visit http://www.joemitchellattorney.com for further information on criminal law, DUI, Drugs, Personal Injury, Wills & Estates and more!

Criminal Record Search by Attorney Joe Mitchell

The following is an instructional video recorded by Attorney Joe Mitchell to provide viewers with an insight on how to search for important criminal information in Pennsylvania using the First Judicial District's Online Criminal Docket Search.

For more information on criminal and other legal matters, please visit our website at: www.joemitchellattorney.com