When can  police  arrest a passenger  for being present in a car containing a controlled substance? Let’s assume you are a front passenger in a car traveling in Minneapolis and the driver is suddenly stopped by police for a traffic offense. Let’s also assume there is methamphetamine and a scale located in the glove box directly in front you. A police officer approaches the driver’s side door and makes a request to the driver for his license and insurance card. During the conversation, the officer detects an odor of burnt marijuana. You are asked about the odor but deny any knowledge of it and there are no signs indicating you are under the influence. You are ordered out of the car so the officer can conduct a search of the car based on the odor of marijuana. The officer searches the glove box and finds several baggies of methamphetamine. The driver and you are both arrested for possession of a controlled substance and transported to jail. The car is towed to an impound lot.

Did the police have probable cause to arrest you, the passenger in the car? A warrantless arrest is only justified if the police have probable cause to believe you committed a crime. The fact that you were sitting close to the methamphetamine located in the glove box is not sufficient, by itself, to establish probable cause for an arrest. Under Minnesota law, it is a crime to possess methamphetamine. The prosecution is required to prove at trial that you either actually possessed the methamphetamine directly on your person or  you  constructively possessed the controlled substance. Constructive possession occurs when the police find the drug in an area that you exclusively control and where others are unlikely to have control. Constructive possession can also be proved where   the drug is found in a place where others have access but there is a strong possibility you were exercising conscious control at the time of the arrest. The law requires that you consciously exercise exclusive control not only over the area where it is located but of the methamphetamine itself. Under the facts of this case, the officer lacked probable cause to arrest you.

What is the legal remedy for an illegal arrest? Because the police lacked probable cause to  arrest you, all of the evidence obtained against you must be suppressed, including the methamphetamine found in the glove box, any statements you made to the police, and any incriminating items found after a search of the person. The charge will be dismissed.

If you have been arrested and charged with a drug crime in Minnesota or Wisconsin, please give me a call for a free phone consultation at (612) 339-1024.