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Possession of Drug Related Objects
O.C.G.A. § 16-13-32.2 pertains to “drug related objects.” It criminalizes the use and possession of “any object or materials of any kind for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance.”
The law classifies Possession of Drug Related Objects as a misdemeanor. This means that it can carry a penalty of up to 12 months in jail and/or a fine of up at $1,000. While misdemeanors are comparatively less serious offenses, they are still not to me taken lightly. For most people, a jail sentence of any length (even 24 hours) can be highly traumatic and disruptive to their lives, and even probation can substantially lower a person’s quality of life (and lighten their wallet). If you are charged with Possession of Drug Related Objects, you should definitely speak to a Georgia Criminal Attorney immediately.
The Possession of Drug Related Objects law is incredibly broad, as it covers basically any kind of object, so long as the trier of fact finds that the defendant used or intended to use the object for one of the prohibited purposes set forth in the statute. This statute, due to how broad it is, has been challenged multiple times as being unconstitutional, has nonetheless survived these constitutional challenges. This does not mean, however, that there are no defenses to a Possession of Drug Related Objects charge.
Defenses to a Possession of Drug Related Objects Charge
Defense #1: No possession
In order to prove a Possession of Drug Related Objects charge, the State must prove that a person possessed the object(s). In any kind of possession case, possession may be “actual” or “constructive.” Actual possession means that the police found the object on the person (for example, in their coat or pants pocket). Constructive possession is trickier. In a constructive possession case, the contraband is discovered not on a person, but in a location where the defendant can “exercise control” over it. Constructive possession is commonly used by police to charge all the individuals in a vehicle with possession over contraband found within the vehicle – when multiple people are charged, this is known as “joint constructive possession.”
For example, in Holloway v. State, the Georgia Court of Appeals found that sufficient evidence existed to show that the defendant had joint possession of two crack-pipe filters found in the vehicle that he was driving and in which a passenger was riding. (To prove intent, the State presented evidence that both the defendant and his passenger were involved in the drug trade.) This was sufficient to support a conviction for Possession of Drug Related Objects. Holloway v. State, 297 Ga.App. 81, 676 S.E.2d 445 (2009).
However, in some cases it is possible to show that there was no possession over the object. This can be the case where one party admits to sole ownership of the contraband, for example.
Defense #2: Innocent purpose
Because basically any object can be a “drug related object” if the State can prove that the defendant had the intent to use it for a drug-related purpose, intent is very important. Because Minority Report is not (yet) real and the police do not actually have the ability to read our minds, they must prove intent based on all the facts and circumstances surrounding the arrest – the law refers to this as the “totality of the circumstances.” For example, if a person has a crack pipe with drug residue on it, it is not a logical leap to infer that it might be used for an illegal purpose.
However, the police deal with crime all day, so sometimes they infer guilty intent where it does not exist. For example, there are perfectly legitimate and legal uses to own a kitchen scale; a police officer, though, may assume that the owner of the kitchen scale must be selling drugs.
Defense #3: The Initial Stop Was Illegal
In order for the police to stop a person in a vehicle, they must have some reason to believe that the person is engaged in criminal activity. This reason must be more than a “hunch” and may not be based on some illegal reason (like the person’s race, for example). The law refers to this as “reasonable, articulable suspicion.” It’s a much lower standard than probable cause, and even a broken taillight would likely be deemed sufficient to support a stop. If the police lacked such a reason, though, any and all evidence discovered as a result of such a stop would likely be subject to suppression.
Similarly, for the police to stop a person on the street and execute a pat-down, they must have reasonable suspicion. These pat-downs are also referred to as Terry stops, named after the famous U.S. Supreme Court case that legalized such stops and determined the “reasonable suspicion” standard. They allow a police officer with reasonable suspicion to temporarily detain a person and do a pat-down of the exterior of their clothing, and they may not(legally) enter the person’s pockets. It is not uncommon for the police to abuse their authority during such Terry stops. Frequently, they will claim to feel contraband during a pat-down, even if such a thing is highly unlikely (for example, they will claim to have felt a tiny bag of marijuana during a Terry pat-down, even if that seems impossible). They will then use that to justify an arrest, after which a more comprehensive search is legal.
There are numerous other ways in which a search may be deemed illegal. The rules are strict about how much evidence the police must have prior to doing a pat-down and how these pat-downs may be done. If you were searched in connection with an arrest, you should be sure to tell your Georgia Drug Defense Lawyer everything you remember, as this may be the difference between winning and losing your case.
Relationship to Other Charges
Possession of a Drug Related object may be considered a “lesser included offense” of other charges, depending on the facts of the case. In Franks v. State, it was found to be a lesser included offense of trafficking by manufacturing methamphetamine, and thus the Court of Appeals found the trial court to be in error in its refusal to charge on Possession of Drug Related Objects. Franks v. State, 745 S.E.2d 666 (2013).
Why You Should Hire A Georgia Drug Defense Attorney if You Have Been Arrested
If you have been arrested for Possession of Drug Related Objects, you should contact a Georgia Criminal Defense Attorney with experience fighting drug related charges. The law of searches is complex and changes frequently, and it is imperative to hire someone who is not a “general practitioner,” but who focuses on criminal cases. Call me today.
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