What does the term “unwitting possession” mean and is it a valid defense?

Unwitting possession means that you possessed a contraband substance without knowing you had it. The classic case is mail carriers – they deliver a package containing cocaine but are not guilty of possessing cocaine because they didn’t know (and had no reason to know) that cocaine was in the package. The other classic case is borrowing someone’s car and the owner had cocaine stashed in the door frame. Some states allow unwitting possession as a defense, some add the ‘had no reason to know’ element, and some don’t specifically recognize the defense at all.

However, in all jurisdictions, evidence which convincingly proves that the defendant did not know the drugs were there eliminates the element of “mens rea,” or “guilty knowledge or intent.” It is not a crime to be unlucky. The defendant usually has the burden of proving unwitting possession by a preponderance of the evidence. Look at it this way, if a jury is faced only with evidence that there were drugs hidden in a car used by multiple people and no evidence at all that the one arrested is the one who put it there, or even uses drugs, it is difficult to imagine how such a jury could find “guilt beyond a reasonable doubt.” The missing other drivers of the car are as likely to be the ones who put the drugs there as the one arrested. The more deeply hidden the drugs are, the less likely the driver knew they were there.

Case Studies: Unwitting Possession as a Defense

Case Study 1: Mail Carrier’s Unwitting Possession

Sarah, a mail carrier, unknowingly delivers a package containing illegal substances. The package was sent by a drug trafficker but disguised as a regular shipment. Since Sarah had no knowledge or reason to suspect the presence of drugs in the package, she could potentially use the defense of unwitting possession to argue against criminal charges related to drug possession.

Case Study 2: Borrowed Car With Hidden Drugs

John borrows his friend’s car, which unbeknownst to him, has drugs concealed in the door frame. While driving, John is pulled over and the drugs are discovered by law enforcement. As John had no knowledge or intent to possess the drugs, he may be able to use the defense of unwitting possession to contest the charges brought against him.

Case Study 3: Multiple Users of a Shared Vehicle

In a case involving multiple drivers of a shared vehicle, the car is found to contain hidden drugs. One of the drivers is arrested and charged with drug possession. However, due to the absence of evidence proving that the arrested individual placed the drugs in the car or had knowledge of their presence, the defense of unwitting possession could be raised to challenge the charges.