In Arkansas, many innocent citizens have been, and many more will be, arrested when a car in which they are a passenger is stopped for a minor traffic violation and subsequently searched. In a substantial number of these encounters, the officer will have no probable cause to search the vehicle. He’ll request the driver’s consent to search, and the driver will give it.

Often, this “request” will sound and feel like a demand; it may be a branch in a compound question: “You don’t have anything illegal in the car do you? Mind if I take a look?”

The proper answer to that question is, “Officer, I don’t consent to any searches. Am I being detained or am I free to go?”

When you find yourself arrested and charged as a result of drugs being found in the car in which you were a passenger, unless they were on your person, your charges stem from the theory of “constructive possession.”

In Arkansas, the Supreme Court has consistently held that it is not necessary for the State to prove that you had actual physical possession of the drugs. Possession can be implied when the drugs are found in a place that is immediately and exclusively accessible to you and “subject to your dominion and control.” If the State can prove that you had care, control and management over the contraband, you may be found guilty of possession under the constructive possession theory.

However, where evidence of possession is purely circumstantial, as it is where you are simply a passenger in the car where the drugs are found, the State needs more to establish possession. There must be some additional factor beyond your mere presence to link you to the contraband. In fact, there must be some evidence that you had knowledge of the presence of the controlled substance in the vehicle.

If the contraband is in plain view, or plain smell, the State will have the proof it needs to show you had knowledge of the presence of the contraband. Your presence coupled with knowledge of the drug’s presence is enough for a judge or jury to find you guilty in Arkansas.

In sum, you don’t have to be holding it to be found guilty of possession; if you can see it or smell it, you know it’s there. Never consent to a search and remind your friends: “Officer, I don’t consent to any searches. Am I being detained or am I free to go?”