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Possession of a Controlled Substance: What It Means in Indiana

Possession of a controlled substance is against the law in Indiana, with the Indiana Code defining what constitutes a controlled substance. But the Indiana Code does not clearly define what it means to possess a drug. Does it have to be on your person? On your property? Found when you are present? Over the years, the Court of Appeals of Indiana and the Indiana Supreme Court have been honing the definition through opinions issued in Indiana possession cases brought up on appeal.

If you’ve been charged with possession as an offense under Indiana drug possession laws, understanding the legal definition of “possession” is critical. When you understand what legally constitutes possession, you will be better able to help prepare a defense against your charges.

Possession of a Controlled Substance: A Critical Element for All Drug Crimes

The vast majority of drug crimes in Indiana include possession as an element of the offense. In other words, the state must prove that the accused was in possession of a controlled substance before the court can enter a judgment of conviction. But possession is not as simple a concept as many believe. You can be in possession of a controlled substance even if you are not present. So how does that work? Read on to understand how Indiana courts have refined the definition through the years. And if you still have questions, an Indiana drug defense attorney from Keffer Hirschauer LLP can help.

An Overview of Drug Crimes in Indiana

Under Indiana Code § 35-48-4-7, possession of a controlled substance without a valid prescription can result in a charge of a Class A misdemeanor or a Level 6 felony. Indiana Code § 35-48-1-9 defines a controlled substance as a drug or substance or its immediate precursor listed in one of five categories or schedules of drugs. The drugs included in the schedules have a potential for abuse and are allocated to a particular schedule depending on the potential for abuse:

  • Schedule I drugs have a high potential for abuse and no effective treatment approved in the US; includes drugs such as heroin, LSD, ecstasy, marijuana, and peyote
  • Schedule II drugs have high potential for abuse but medical treatments approved in the US can be effective, although some may have severe restrictions; includes drugs such as small amounts of hydrocodone, cocaine, methamphetamine, fentanyl, oxycodone, Ritalin, and Adderall
  • Schedule III drugs are less likely to be abused than the drugs in Schedule II but can lead to low or moderate dependence and for which the US has approved medical treatments that can be effective; includes drugs such as 90 milligrams or less of codeine per dose, anabolic steroids, testosterone, ketamine
  • Schedule IV drugs are less likely to be abused compared to drugs in Schedule III and US-approved medical treatments can be effective, but usage can lead to limited physical or psychological dependence compared to the drugs listed above; includes drugs such as Valium, Darvon, Xanax, Darvocet, Ativan, Tramadol, and Ambien
  • Schedule V drugs are less likely to be abused compared to drugs in Schedule III and US-approved medical treatments can be effective, but usage can lead to limited physical or psychological dependence compared to the drugs listed above; includes drugs such as lower doses of codeine (like those in Robitussin AC), Lyrica, Motofen, Lomotil, and Parapectolin

Examples of statutes criminalizing possession of a controlled substance or related materials include:

Factors that can increase the level of the offense include the amount of the drug, paraphernalia, or precursors someone possesses, whether the accused also possess a firearm, and whether the offense was within 1,000 feet of a school or public park.

The Different Types of Possession of a Controlled Substance

Indiana drug laws contemplate different types of possession, which apply to all possession offenses. First, possession offenses are divided into two categories:

  • Mere possession, also referred to as simple possession, and
  • Possession with intent to distribute

The difference between the two is generally based on the amount of the substance involved. Higher amounts can tip the scale to a charge of possession with intent to distribute, which is a higher level offense.

In addition to addressing the amount, the law also contemplates the nature of possession involved as shown by the facts of the case. As mentioned above, possession can be either actual or constructive. Actual possession occurs when the accused has or had direct physical control over the substance at issue. With the second type of possession, constructive possession, the accused need not have direct physical control of the illegal substance to be found to possess it but merely have the intent and ability to control or possess it. Each type of possession is discussed in more detail below.

What is Actual Possession?

To be in actual possession of an illegal drug, paraphernalia, or precursors, you must knowingly have direct physical control over the item. Having the item on your person—in your pocket, your shoe, or your hat—would clearly be actual possession. A court may find also actual possession of the drug or other contraband is not found on your person but you were witnessed disposing of it, such as throwing it out a window or dropping it on the ground.

However, you do not have to be caught red-handed to be charged with a possession offense. A court may find actual possession even if the contraband is not found on you but instead is discovered near you. Put another way, you could be found to have actual possession of a drug even if you did not have it on you when law enforcement discovered it, as shown in these examples from Indiana drug cases:

  • Evidence shows that the area such as a patrol car back seat or an area of the ground was clear of drugs or other contraband before the defendant came to the area but law enforcement discovered the drug or contraband there soon after the defendant left or was removed from the area
  • Clear evidence shows you possessed a drug or related contraband in the past
  • A law enforcement officer saw a car passenger with her hand between the seat and the car door and heard a noise and subsequently found a bottle of hydrocodone there

Not all cases of actual possession are clear-cut. If you’ve been charged with a possession crime, be sure to consult an experienced criminal defense attorney for help.

What is Constructive Possession?

To support a finding of constructive possession Indiana case law requires the State to show that the accused had the intent to have dominion and control over the drug or other contraband and the capacity or ability to assert such dominion and control. In other words, the accused must have meant to possess it (regardless of how near the drug or contraband is) and must have the ability to exert such dominion and control over it. Control has to do with the relationship between where the accused was or has been and the location where the drug or contraband was found. The drug or contraband may be quite removed from the accused and still support a finding of constructive possession.

A court may find constructive possession even if the accused was not the only person with access or control of the area where the drugs were found. However, the court would also look at several other factors such as:

  • Whether the drug or contraband was found in plain view
  • Whether the drug or contraband was found close to the accused
  • Whether other possessions of the accused were found near the drug or contraband
  • Whether the accused admitted to owning the drug or contraband
  • Whether the accused fled
  • Whether the accused exhibited any other secretive or furtive conduct

Examples of constructive possession are quite varied. Indiana constructive possession case law shows that a defendant has been found to be in constructive possession in the following situations:

  • Law enforcement found defendant in his bedroom, which also contained small packages of cocaine, bullets, and a large amount of cash
  • Law enforcement found a hypodermic needle filled with heroin in plain view on the defendant’s nightstand and a warm cooker in the kitchen of an apartment in which defendant was the sole lessee
  • Law enforcement found in plain view a plastic bag of methamphetamine and materials for its use, including a dinner plate with white residue, an empty pen shell, and burnt aluminum on the nightstand next to the bed in a bedroom where the defendant stayed three to four nights a week even though it was not his residence

How to Fight a Possession of a Controlled Substance Charge

If you’ve been arrested for or charged with possession of a controlled substance, paraphernalia, or precursors, you can’t just rely on an Internet search for “drug crime lawyers near me” to find the help you need. Only by hiring an experienced Indiana criminal defense attorney do you have the best chance for a reduction or dismissal of charges or, if it goes to trial, a not guilty finding or an acquittal.

In Indiana, you will find that attorney at Keffer Hirschauer LLP. Our team of criminal defense lawyers are focused on protecting your rights and bring years of criminal defense experience to the table. For effective, focused, and experienced counsel, you need an Indiana drug defense attorney from Keffer Hirschauer LLP. For a free consultation and more information on how we can help with your possession of a controlled substance case, call (317) 857-0160 or complete our online contact form. The sooner you call, the sooner we can help.

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