You were riding around late one night with a friend who was driving.  An officer pulled you the car over.  Smelling alcohol on your friend, the officer had you both leave the car before spotting narcotics under the driver seat.

Can you be arrested for the drugs? The answer is generally no as long as you did not know about or possess the drugs and you did not exercise exclusive control over the place where the drugs were found. Your mere presence in the car may not be enough. The same is true for other types of contraband such as guns.

To convict you, the state must show you had knowledge and either actual or constructive possession of the drugs or weapons, by yourself or jointly with another. Actual possession exists when you exercise immediate and exclusive control over the contraband. Constructive possession exists when you have the intent and capacity to maintain control over the contraband. Your control over the area where it is found gives rise to an inference that you knew about and possessed the contraband.

The judge or jury may infer knowledge from several factors, including whether you could see the contraband and how you long you had to observe it from where you were sitting in the car, any gestures or movements you made suggesting you were trying to retrieve or conceal it, and the size of the contraband. Your regular, ongoing control of a car or your connection to its contents also indicate your knowledge of other items present.

For example, in People v. Horn, the defendant was riding as a passenger on the highway with his cousin. The officer stopped the car for a minor traffic offense.  A K-9 dog found drugs in the trunk in an urn containing a bag of ashes and a bag of cocaine. Defendant was then charged with possession of a controlled substance and possession with intent to deliver.

The appellate court held there was no evidence that defendant could see the contents of the trunk which was not visible from the passenger compartment. Defendant was calm during the stop and made no gestures indicating he knew about the contraband.  Defendant had no property in the car, the car was not registered to him, and he was not driving when the car was stopped. Therefore, the court reversed his conviction.

If you have been charged with a criminal offense, contact an experienced criminal law attorney immediately. Did the officer have probable cause to arrest you?  If not, an attorney can try to petition the court to suppress any evidence resulting from an illegal stop or search.


If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email <a href=””></a>.

<p><i>(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)</i>


About mdkeenan

A criminal and school law attorney with over 17 years of experience, I have successfully represented clients all over the Chicago area. My practice includes DUI, felony, criminal, misdemeanor, homicide, internet crime, retail theft, traffic offenses, cyberstalking, drug crimes, weapons violations, domestic battery and juvenile crime. I also represent families involving school cases. My clients come from all over the Chicago area including Skokie, Wilmette, Niles, Northbrook, Glenview, Evanston, Winnetka, Highland park, Northfield, Park Ridge, Des Plaines and Mount Prospect. I am a member of the ACLU and the Illinois State Bar Association. I serve as a volunteer for First Defense Legal Aid. Se habla espanol.
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