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