Joint Drug Possession Under Texas Law

In Texas, the concept of "possession" can sometimes be a little tricky when we think about it in terms of the law as opposed to what we all commonly define as "possession". Whether it’s related to controlled substances, firearms, or stolen property, possession is a key element in many criminal offenses. But what does possession actually mean in the eyes of Texas law? This post will break down the definition, legal standards, and consequences of possession in the Lone Star State.

Definition of Possession in Texas Law

Under Texas Penal Code §1.07(a)(39), possession is defined as having "actual care, custody, control, or management." This broad definition means that possession isn’t limited to physical ownership. Instead, it can include situations where a person has any access to or control over an object, even if they don’t physically hold it at the moment.

Possession can be categorized into two types:

1. Actual Possession: This occurs when the individual has physical custody of the item. For instance, if someone is holding a bag containing illegal drugs, they are in actual possession.
2. Constructive Possession: This arises when an individual does not have physical custody but still has control or the right or ability to excersise control the item. For example, if illegal drugs are found in the glove compartment of a car that a person owns and operates, they may be deemed to have constructive possession. Even if they don't own or are operating the vehicle, police officer's may deem a passenger in the vehicle as having the ability to exercise care, custody, control or management of the illegal item.

Establishing Possession in a Criminal Case

To prove possession in a criminal case, the prosecution must demonstrate two key elements:

1. Knowledge: The accused must have known about the presence of the item, and;
2. Control: The accused must have exercised, or had the ability to exercise, control over the item.

Merely being near an illegal item is not enough to establish possession. For example, if drugs are found in a house shared by multiple roommates, the prosecution must show evidence linking the accused to the drugs specifically—such as fingerprints, ownership of the container, or incriminating statements.

Joint Possession

Texas law also recognizes the concept of joint possession. This means that more than one person can be found to have possession of the same item. For example, if two people are in a vehicle and illegal contraband is found in a location accessible to both, they could both potentially be charged with possession.

Consequences of Possession Charges

Possession charges can carry serious consequences in Texas, varying based on the type and quantity of the item in question. For instance:

• Drug Possession: Penalties depend on the type of drug and the amount, with punishments ranging from misdemeanors to first-degree felonies.
• Firearm Possession: Certain individuals, such as convicted felons, are prohibited from possessing firearms, and violating this prohibition can result in severe penalties.
• Stolen Property: Possession of stolen property can lead to theft charges, with penalties depending on the value of the property.

Defenses to Possession Charges

There are several potential defenses to possession charges in Texas, including:

• Lack of Knowledge: Demonstrating that the accused was unaware of the item's presence.
• Lack of Control: Arguing that the accused did not have the ability to exercise control over the item.
• Mistaken Identity: Showing that the item belonged to someone else and the accused had no connection to it.
• Violation of Constitutional Rights: If law enforcement obtained evidence through an illegal search or seizure, that evidence may be suppressed.

Conclusion

"Possession" is a nuanced legal concept in Texas, encompassing both actual and constructive control over items. Understanding the intricacies of possession is crucial for anyone facing criminal charges. What you think may or may not be possession may be different than what the law defines it as. If you or someone you know is dealing with a possession-related charge, consulting an experienced criminal defense attorney is essential to ensure your rights are protected and to navigate the complexities of the legal system effectively.

Does the Smell of Marijuana Allow Officers to Search My Vehicle Without a Warrant?

In Texas, the answer is yes. The possession of marijuana is a crime in Texas, so if an officer smells marijuana emanating from your car, he has probable cause to believe a crime is being committed. With probable cause, the law permits the officer to stop and search your car— regardless of whether you consent.

The officer has the ability to do this through what is called the “automobile exception” to the 4th Amendment’s warrant requirement.¹ Generally, the 4th Amendment to the United States Constitution requires police officers to first obtain a warrant before they can search a person’s property. However, because automobiles can quickly move locations and evade law enforcement, the Supreme Court reasoned that it would be impractical to require officers to first secure a warrant before they are permitted to search a vehicle.² So by claiming to smell marijuana, law enforcement officers can also claim to have probable cause to believe a crime is being committed—allowing them to take advantage of the automobile exception and search a vehicle without anything more.

Will the Search Laws Change if Marijuana Becomes Legal?

Maybe. There have been small changes in the law with the current trends in marijuana legalization. A couple of state courts adopted the rule that, after legalization or decriminalization, the smell of marijuana is no longer enough on its own to justify a warrantless search of a vehicle. For example, in Vermont, after the decriminalization of adult possession of less than one ounce of marijuana, the Vermont Supreme Court held that the odor of marijuana alone is insufficient to establish probable cause to search a vehicle.³ The Massachusetts Supreme Court ruled that the state’s decriminalization policy means that the possession of marijuana is now a civil infraction, making the smell of it an insufficient basis for officers to believe a crime is being committed.

However, most states where marijuana is legalized or decriminalized still follow the rule that the smell of it establishes probable cause in support of a vehicle search.⁴ This is because these states still criminalize the possession of larger amounts of marijuana—meaning that the smell of it still indicates that a crime could be underway. This is the logic that the Washington, Maryland, Colorado, and Arizona courts follow.⁵

But what about Texas?

As stated above, the possession of marijuana in Texas is a crime, and officers are still justified in searching vehicles if they smell marijuana coming from them. However, Texas legalized the cultivation of industrial hemp in 2019, which smells like just like marijuana. The issue of whether probable cause can still be supported by the odor of marijuana in light of hemp’s legalization was raised in state court in 2020, but the court left it undecided as the vehicle search in question occurred before the legalization of hemp.⁶ It remains to be seen if or when Texas will legalize marijuana, and what attitude Texas courts will take towards the question of marijuana odor and vehicle searches.

 

[1] Carroll v. United States, 267 U.S. 132 (1925).
[2] Id., at 153.
[3] Zullo v. State, 2019 Vt. LEXIS 1, * (Vt. January 4, 2019).
[4] Cece white, The Sativas and Indicas of Proof: Why the Smell of Marijuana Should Not Establish Probable Cause for a Warrantless Vehicle Search in Illinois, 53 UIC J. Marshall L. Rev. 187, 211 (2020).
[5] Id., at 211.
[6] Geberkidan v. State, 2020 WL 5406243, NO. 12-19-00296-CR (2020).

Gov. Greg Abbott has now signed House Bill 1325 into law, clarifying the legality of hemp-derived, low THC CBD products in Texas.

The first major modifications come by way of the Texas Agriculture Code. The code now defines and legalizes “hemp” and establishes a legal production plan for the regulation of hemp and hemp-based products.

The Definition of Hemp

“Hemp” is now defined in in Section 121.001 0f the Texas Agriculture code as

“the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”

This definition is essentially the previous definition of marijuana under the Health and Safety Code but now isolates plants that contain less than .3% THC as being legal “hemp”.

By providing a clear definition of “Hemp” including plants or products that contain .3% THC or less, the legislature has resolved the issue that previously existed making the possession of any amount of THC regardless of it’s origin a felony level offense in Texas.

The Texas Agriculture Code has also been amended to establish a legal production plan for the regulation and sale of hemp and hemp-based products. The Code now establishes a licensing process for businesses looking to grow or sale hemp products.

New Rules for Peace Officers

The amendments to the Code also now give powers and duties to Peace Officers who come into contact with hemp regard to determining whether a plant or substance is marijuana or hemp. Under Sec. 122.358 of the Texas Agriculture Code, a peace officer may now inspect and collect a reasonable sized sample of any material from the plant Cannabis sativa L. found in a vehicle to determine the THC concentration of that material. Unless the officer has probable cause to believe the plant material is marijuana, the peace officer may not seize the plant material or arrest the person transporting the plant material. This would include hemp-derived CBD oil containing .3% THC.

In regards to the Health and Safety Code, HB 1325 has amended the code to exclude hemp (and more importantly the THC in hemp) as defined by Section 121.001 from the definition of a Controlled Substance. The bill also now specifically excludes hemp as defined by Section 121.001 (and the THC in hemp) from the definition of “Marijuana” in Section 481.002 (26) of the Health and Safety Code.

House bill 1325 has significantly clarified the previously confusing state of the law concerning CBD products in Texas. We advise those that are selling, buying or possessing CBD products to read the text of the bill for more details.

https://legiscan.com/TX/text/HB1325/id/2026154/Texas-2019-HB1325-Enrolled.html

Current Marijuana Laws in Texas

Despite having been legalized in other states, possessing even a small amount of marijuana is a crime in Texas. The Texas Health and Safety Code says it is illegal for a person to knowingly or intentionally possess a usable quantity of marijuana. How much marijuana a person has in their possession will affect the level of severity of the offense.

• Up to 2 0z- Class B Misdemeanor, punishable by up to 180 days in jail and up to a $2,000 fine
• 2oz to 4oz- Class A misdemeanor, punishable by up to 1 year in jail and a $4,000 fine
• 4oz to 5lbs- State Jail Felony, punishable by 180 days to 2 years in jail and up to a $10,000 fine
• 5lbs to 50lbs- 3rd Degree Felony, punishable by 2 to 10 years in jail and up to a $10,000 fine
• 50lbs to 2000lbs- 2nd Degree Felony, punishable by 2 to 20 years in jail and up to a $10,000 fine
• More than 2000lbs- 1st Degree Felony, punishable by 2 to 99 years in jail and up to a $50,000 fine

Proposed Texas Laws Relating to Marijuana

Texas failed to pass any new marijuana legislation in 2017, but proponents of legalized marijuana are hopeful for the 2019 legislative session. House Bill 2107 was proposed during the 2017 session, co-authored by 78 House members. The bill would have expanded the Compassionate Use Act to include Texans dealing with medical issues other than intractable epilepsy. While the bill narrowly missed being brought to a vote, it showed there was bipartisan support for such a bill, and legislators remain optimistic marijuana reform will happen in 2019.

Medical Marijuana in Texas

The Texas Compassionate Use Act was signed by Governor Greg Abbot in 2015. The Act allows for individuals with intractable epilepsy to have access to CBD oil, a low THC cannabis oil. The bill prohibits smoking marijuana. Critics of the law say it is unworkable, as it requires a doctor to “prescribe” marijuana rather than recommend it as they do in other states where medical marijuana is legal. Under current federal law, a doctor “prescribing” marijuana could be open to sanctions, while one recommending the use is not. Another issue is that the ratio of THC to CBD that is allowed under the law is not potent enough to help some patients. There is potential for changes to be made to the Act during this legislative session, with proponents of the Act looking to broaden the scope and make access easier for patients.

THC Oil in Texas (Wax, Dabs, Marijuana Concentrate)

Possessing THC (tetrahydrocannabinol) oil in Texas is considered a more serious crime than simply possessing marijuana. Over the last few years, vaping THC oil, which is a concentrated version of the mind-altering component of marijuana, has become popular. Under Texas law, THC oil or wax is considered a concentrate and possessing it is a felony criminal offense.

• Less than 1 Gram- State Jail Felony
• 1 Gram to 4 Grams- Third Degree Felony
• 4 to 400 Grams- Second Degree Felony
• 400 grams or more - First Degree Felony

The law considers THC oil and wax to be in a different penalty group that marijuana, due to the higher level of THC, and consequences are much harsher. So while a typical small amount of marijuana could be punishable as a misdemeanor, even a very small amount of THC oil can be punishable as a felony. This is a common misconception that we often see in our THC oil cases. The user believes that a low amount is a misdemeanor, much like a low amount of marijuana. Not so. Every THC oil case is a felony.

Edible THC in Texas

The use of THC oil in edibles can be very serious. When weighing the amount of a controlled substance, the Texas Health and Safety Code includes all adulterants and dilutants in the total weight. Popular THC laced edibles like gummy candy and brownies will be weighed in their entirety, and can result in very serious felony charges.

CBD Oil in Texas

Cannabidiol oil (CBD Oil) is made from cannabis, but is non-psychoactive. CBD oil that is made from industrial hemp is currently legal in Texas. Recently, shops selling CBD oil products have been popping up all over the metroplex, with promises the product can relieve pain and anxiety. The Texas Department of State Health Services has begun to crack down on retailers selling food products made with CBD oil, claiming they have the power to regulate any food product that contains CBD oil.

But not all CBD oil is legal. If there is any trace of THC in the CBD oil, the user could face prosecution for misdemeanor Possession of a Controlled Substance (Not in a Penalty Group).

Synthetic Marijuana in Texas

K2, or Spice, is a synthetic form of marijuana that is created by spraying natural herbs with chemicals meant to mimic the effects of marijuana. Synthetic Marijuana is illegal in Texas, and carries the same punishment as marijuana.

Selective Prosecution for Marijuana Offenses in Texas

Several counties across the state, including Dallas, Bexar, and Harris, have implemented a marijuana cite and release program whereby folks are not being arrested for low-level possession charges. Other counties have diversion programs for first-time or low level offenders. You should check with a knowledgable attorney in your local area to learn more about the diversion programs available.

In Tarrant County, depending on the circumstances of the case, a marijuana offender may qualify for the Deferred Prosecution Program (DPP) or the First Offender Drug Program (FODP). Again, you should check with an attorney to determine whether you might be eligible to participate in either program.

Conclusion

Regardless of whether you disagree with what the law should be in regard to marijuana in Texas, it is currently illegal to use or possess. If you are arrested for possession of marijuana, you may qualify for a diversion program that will ultimately allow you to get your record fully expunged. Contact one of our attorneys today if you have pending marijuana charges in Tarrant County. We will be happy to discuss your options and defend your case.

The Case of the Not Too "Wise" Bus Passenger

United States v. Wise, 877 F.3d 209 (5th Cir. TX 2017)

FACTS: In this case, police officers were conducting bus interdictions at a Greyhound bus stop. After a certain bus stopped, the driver got off the bus and the officers approached him requesting consent to search the passenger cabin of the bus. The bus driver consented to a search and two experienced narcotics officers in plain clothes boarded the bus. The officers did not block the exit or otherwise obstruct any of the passengers from departing the bus. One officer walked to the back of the bus while the other officer remained at the front.

The officer at the front of the bus noticed a man who was pretending to be asleep. The officer found this suspicious, because in his experience, criminals on buses often pretended to be asleep to avoid police contact. The officer walked past the "sleeping" man and turned around. The sleeping man (named Morris Wise) then turned to look back at officer, revealing that he was not asleep after all. The officer then approached Wise (now awake) and asked to see his bus ticket. Wise gave the officer a bus ticket, bearing the name "James Smith." The officer had a hunch that James Smith was a fake name. The officer then asked Wise if he had any luggage with him on the bus. Wise said yes and motioned to the luggage rack directly above his head.

Wise then gave the officers consent to search the duffle bag in the overhead compartment. The officers did not find any contraband in the duffle bag. The officers also noticed a backpack near Wise and asked if the backpack belonged to him. Wise denied ownership of the backpack. The officers then asked the other passengers about the backpack and no one claimed it, so the officers removed the backpack at the bus driver's request.

Outside the bus, a trained police canine alerted to the backpack. The officers then cut a small lock off the backpack, searched it, and found seven brick-type packages that appeared to contain cocaine.

The officers then went back onto the bus and asked Wise if he would mind getting off the bus to speak to the officers. Wise complied with the officers' request and got off the bus. The officers asked Wise if he had any weapons, which he denied that he had any weapons, and then they asked him to empty his pockets.

From his pockets, Wise gave the officers his ID card with bearing the name "Morris Wise" and a lanyard with several keys attached to it. Not surprisingly, one of the key opened the lock that the officers had to cut off of the backpack (that Wise said was not his). The officer then arrested Wise, and the government charged him with several drug-related offenses.

Motion to Suppress the Search as the Fruits on an Illegal "Checkpoint Stop"

Wise filed a motion to suppress the evidence as a violation of his 4th amendment right against unreasonable searched and seizures. The district court held that the officers' conduct in searching the bus constituted an unconstitutional checkpoint stop. In addition, the district court held that the bus driver did not voluntarily consent to the officers' search of the luggage compartment where the backpack was located. As a result, the district court suppressed all evidence the officers seized after the stop.

The government appealed to the Fifth Circuit Court of Appeals.

First, the court held that the district court incorrectly characterized the officers' bus interdiction as an unconstitutional checkpoint. The court noted that the Supreme Court's cases involving checkpoints involve roadblocks or other types of conduct where the government initiates a stop to interact with motorists. In this case, the officers did not require the bus driver to stop at the station. Instead, the driver made the scheduled stop as required by his employer, Greyhound. In addition, the officers only approached the driver after he had disembarked from the bus, and the driver voluntarily agreed to speak with them. The court concluded that the interaction between the officers and the driver was better characterized as a "bus interdiction."

Second, although Wise had a reasonable expectation of privacy in his luggage, the court held that as a passenger, Wise did not have a reasonable expectation of privacy in the luggage compartment of the commercial bus. As a result, the court concluded that Wise had no standing to challenge the officers' search of that compartment, to which the bus driver consented.

Third, the court held that the officers did not seize Wise, within the meaning of the Fourth Amendment, when they approached him, asked to see his identification, and requested his consent to search his luggage. Instead, the court concluded that Wise's interaction with the officers was a consensual encounter because a reasonable person in Wise's position would have felt free to decline the officers' requests or otherwise terminate the encounter.

Finally, the court held that Wise voluntarily answered the officer's questions, voluntarily emptied his pockets, and voluntarily gave the officer his identification and keys.