What is an Unwitting Possession? Is it a Viable Defense?

Have you packed your own bags?

If you’ve ever been to the airport or through customs when traveling you may hear the question “Have you packed your own bags?” or “ Have you left your bag unattended at any time?” While this seems like an odd question at times, it does have a purpose. They are trying to ascertain whether or not there is a chance someone put something in your bags without your knowledge. If they did, you may unwittingly be transporting an illegal substance.

This is more common than you may think. If you’ve ever watched any law enforcement reality television shows, you may see suspects being pulled over and once a search of their vehicle is performed, drugs are found. Invariably, the suspect says they didn’t know the drugs were there! Even if they are the only ones in the vehicle, if it was borrowed or they recently had passengers it is possible the police can claim an unwitting possession defense.

What is an unwitting possession?

An unwitting possession is just as is sounds; it means you possess an illegal substance without knowing you had it. If there is evidence that convincingly proves you did not have the knowledge you were in possession of an illegal substance, then you may be able to avoid prosecution. Some states allow it, and some add a “had no reason to know” element to the defense, and some don’t recognize it as a defense at all.

Is it a viable defense?

Depending on the circumstances of your unique case, unwitting possession could be a very viable defense. In the case of a postal worker transporting an illegal substance through the mail, they would have a very convincing defense that they did not know, nor had they reason to know, that they were in fact transporting something illegal.

While some jurisdictions may not recognize unwitting possession, all jurisdictions recognize that if it cannot be proven the person knew about the substance, the “means rea” or “guilty knowledge or intent” aspect of the prosecution will be removed.

Quality representation

If you are facing a charge related to possessing a substance of which you were unaware, you need to hire a defense attorney right away. Call 913-780-6666 or fill out our online contact form and someone from the Morrison Law firm will set up your free consultation to discuss the details of your case and how we might be able to help you.