I Was In a Car with Drugs…

by Professor Byron L. Warnken on February 7, 2014

Well, I was not in a car with drugs but if you’re reading this, maybe you were.

If I am in a car that is stopped, and there are drugs, what can the police do to me?  The answer to that question depends on a couple of variables.  What is your status and where are the drugs?

There is a threshold issue of whether there are drugs in the vehicle.  A vehicle may only be stopped if there is


  1. Reasonable suspicion that a crime took place and reasonable suspicion that one or more individuals in the vehicle committed that crime, or
  2. A violation of the traffic laws and/or safety laws.
Vehicles are usually stopped based on (2).  If there are drugs in the vehicle, police usually determine that drugs are present by smelling drugs (particularly marijuana), observing drugs or drug paraphernalia, or having a drug sniff dog alert to the presence of drugs in the vehicle or on a person.


If you are in a vehicle, you are either the driver or you are a passenger, meaning someone other than the driver.  If police validly stop a vehicle, the driver is considered to be in actual or constructive possession of everything in the vehicle.  Actual possession means actual dominion and control over an item.  It means direct control, e.g., in one’s hands, in one’s pockets, in one’s briefcase.  Constructive possession means indirect possession based on a totality of the circumstances.  This takes into account the distance between the alleged possessor and the item possessed, the ownership or possessory interest of the person in the place where the item alleged to be possessed rests, and any evidence of mutual use and enjoyment of the item allegedly possessed with another person who is in actual or constructive possession of the item.  Both actual possession and constructive possession are possession, and the law prohibits possession of drugs.


The driver of a vehicle is always considered to be in actual or constructive possession of everything in the vehicle that he or she is driving.  That does not include drugs in a passenger’s backpack because those drugs are more on the person of the passenger than they are in the driver’s vehicle.  More than one person may be in actual or constructive possession of an item at any given time.  The leading Supreme Court case is a 2003 case from Maryland.  In that case, the Supreme Court held that when there were three people in an SUV (a driver, a front seat passenger, and a back seat passenger), and there was a lot of cash in the glove compartment, and there were drugs in the rear seat armrest, there was sufficient evidence from which the trier of fact could find that all three had knowledge of, and were in actual or constructive possession of, the drugs.  Thus, in addition to the driver being in actual or constructive possession of drugs in the vehicle, any or all passengers may be in actual or constructive possession of drugs in the vehicle.


This means that there is probable cause, i.e., a probability, to believe that the driver and, perhaps, one or more passenger(s) is (are) in actual or constructive possession of drugs in the vehicle.  Based on probable cause, the police may arrest the driver and perhaps passengers for the crime of drug possession and/or possession of drug paraphernalia.  If police arrest, they take the arrestee(s) before a court commissioner.  About half the time, the court commissioner releases arrestees on personal recognizance, meaning released on their promise to attend any required proceeding.  About half the time, the court commissioner sets bail, and the arrestee is only released upon posting bail.  


If there is less than probable cause to believe hat there are drugs in the vehicle, then there is most likely at least reasonable suspicion that there are drugs in the vehicle, based on an articulable set of facts.  If so, the officer may take reasonable steps to confirm his or her suspicion (and then arrest) or to dispel his or her suspicion (and release the person stopped).


For many years, I have taught law students, lawyers, and judges on Maryland Criminal Procedure and 4th Amendment issues.  I have also taught the same to law enforcement officers.  If you’ve been charged with a crime and are seeking representation, please watch this.

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