Drug Equal Access Rule

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Imagine being the owner of a three-level town house where you live on one level, renting out the other two. One day, the police arrive with a search warrant for one of your tenants.  During the execution of the search warrant, police find marijuana, that you are not aware of, in what appears to the living room of the house. The police, then, gather all three of you and begin to inquire about the owner of the marijuana.  Assuming, neither of you admit ownership.  What can happen next?

The simple answer—all three of you can be arrested.  Now, you, unaware of the marijuana, it doesn’t seem fair that you can be charged and convicted for drugs not found on your person.  Unfortunately, this situation occurs to often in our jurisprudence. This situation is the gist of what attorneys refer to as the equal access rule.  The equal access rule, applicable in Georgia criminal cases, presumes that any contraband found on a particular property, belongs to the owner, or if the owner is not present, the possessor of the property at the time the contraband was found.  Originally only applicable to contraband found on someone’s property, Georgia courts have extended its application to apply to vehicles.  The equal access rule, typically applies to drug possession charges.  However, in order to fully understand the equal access rule, one must first understand its many components.

The first step in understanding this rule is to distinguish between ownership and possession.  Ownership is usually shown by some written document establishing a legal right to a particular item.  Possession refers to someone having exclusive dominion or control over a particular item at some specified time.  Possession can be shown different ways depending on the jurisdiction.  In Georgia, possession in the context of drug possession can be shown three ways: (1) actual possession; (2) constructive possession; and (3) consumption of the controlled substance.  Relevant to this article, actual possession occurs when someone has physical dominion or control over an item.  Constructive possession, on the other hand occurs when someone has knowledge of a particular item and the ability to exercise dominion or control over the item.  To illustrate, a car title, is a written document proving the ownership of a particular vehicle.  Allowing someone to drive a vehicle that I own gives that person actual possession over the vehicle, and likely constructive possession over anything that may be in the trunk (assuming the trunk is wholly inaccessible from the driver’s seat).

Constructive possession can be divided into two categories.  More relevant to this article, is joint-constructive possession. Joint-constructive possession allows the prosecuting attorney to indict, bring to trial, convict, and punish, one, several, or all alleged defendants for the constructive possession of contraband. Constructive possession in drug cases generally occur when police officers encounter multiple persons found near or in spatial proximity of drugs.  To illustrate, imagine a group of friends, in a car, smoking a marijuana cigarette (blunt).  Under the doctrine of constructive possession, the entire group could be indicted, brought to trial, convicted, and punished for possession of marijuana.

The equal access rule is a common law, or judge-made, rule and not statutorily required. With that being said, there are no strict guidelines that govern the application of this rule.  The presumption of fact that it creates can always be rebutted by sufficient evidence.  Georgia courts have also permitted defendants to use the equal access rule as a defense.[1]  When used as a defense, the defendant alleges, that the prosecuting attorney cannot show constructive possession because someone/persons other than the defendant has equal access, dominion or control over the location where the drugs were found, despite the defendant being the owner of the property.  Uniquely serving two functions (presumption of fact and defense), the equal access rule can prove complicated.  Lack of knowledge in the relevant case law can place a defendant at an unfair advantage during trial.

Being arrested for drugs that you had no knowledge of can be a scary thing.  Even scarier if the police decide to charge everyone involved.  But, without the right person by your side, scary can become an understatement.  There are limitations to the equal access rule unmentioned in this article, therefore, if you have been arrested for drug possession, especially drugs you were not aware of, an experienced criminal defense attorney is necessary to assist you in this difficult process.  Contact Bixon law today to discuss your options. Let us help you so that you do not have to go through this process alone.

[1]Thompson v. State, 234 Ga. App. 74, 77 (1998)


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