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I was recently arrested and charged in Missouri with possession of under 10 grams and 1 paraphernalia charge in my vehicle. I consented to be searched having confidence that nothing was in my car. I was just speeding. Little to my knowledge, my friend had left his grinder and pipe in my car from the previous week. It was found, and I was charged. I know I messed up when I allowed the officer to search my car, but I was confident nothing was there. I told the police it wasn't mine.

I contacted my attorney and let him know what happened. He asked if my friend would testify in my defense, because they have to prove that it was mine and that I knew it was there in order for me to be charged.

My friend is scared to testify because he doesn't want to get in any legal trouble. If he was not in the car, and he is not possessing anything right now or anytime during the case, would he get in trouble for backing me up in my case?

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I'd recommend first that you tell the court or whoever needs to know that the items were not yours, but that they were left there by your friend without your knowledge. Your friend can refuse to testify since telling the truth would be incriminating him - and while refusing to testify makes it quite obvious to anyone that he is guilty, it cannot be used as evidence against him. I'd recommend second that you check with your lawyer before actually acting on this advice.

What I absolutely do not recommend is that you take the fall to protect your idiot friend. Actually, I would recommend strongly that you think about your relationship with this person. I don't want to make any moral judgements about taking drugs. I will make moral judgements about leaving evidence of it in someone else's car, that is despicable. And doing it without that person's knowledge, is despicable and utterly stupid. You don't want idiots like that as your friends. You might find yourself in a bad position because of it. Wait, you do find yourself in a bad position.

Let's try to clarify this: If you said that your friend left the things in your car, the police would question him. At that point he has three choices: Lying, saying the truth, or staying silent. Lying turns this from a harmless matter into something severely criminal (in the UK it would be "perverting the course of justice", with jail time guaranteed). Saying the truth is risky, staying silent is not.

If the court is told by that your friend did it, and your friend refuses to testify (which he can only do by claiming that he avoids self incrimination), then there is a lot of reasonable doubt that the items are yours.

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    My attorney said In Missouri and with Marijuana its not a crime to claim ownership but it is a crime to be in possession. With him proving I had no idea it was in my car, and him not possessing anything I don't think he would get into trouble. But what im asking is would he be charged or searched if he defended my case? If he would face legal prosecution he would likely not testify and I would have to fight it some other way. – Chris Wendel Dec 26 '17 at 12:18
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Missouri law criminalizes knowing possession:

579.015(1) A person commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance... 579.074(1) A person commits the offense of unlawful possession of drug paraphernalia if he or she knowingly uses, or possesses with intent to use, drug paraphernalia...

Your attorney has a duty to keep you from getting convicted, and has no duty to your friend. When the accused is on the stand being cross-examined by the prosecution, the defense attorney will and should object to all sorts of questions asked of his client. You cannot assume that an attorney would sacrifice his client, in order to save a witness.

If a person testifies under oath that they did knowingly possess weed and paraphernalia at some point and left it in your car, there is the distinct possibility that they could be charged with a violation of these laws. It is correct, as far as I can determine, that there is no law in Missouri criminalizing "ownership", but one person testifying about ownership doesn't show anything about the accused "knowingly possessing". The issue that a witness should be concerned with is, what questions could I be asked to answer that would be used against me later? And how will I know when to take the 5th, without making my testimony useless?

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My attorney said In Missouri and with Marijuana its not a crime to claim ownership but it is a crime to be in possession. With him proving I had no idea it was in my car, and him not possessing anything I don't think he would get into trouble. But what im asking is would he be charged or searched if he defended my case? If he would face legal prosecution he would likely not testify and I would have to fight it some other way. -OP Response to another question.

So that does change things quite a bit. Basically your friend can say "I owned it and left it in the car." This is true, but not criminal because he was not found in possession of it, you were.

However the trial is about did you posses it. Since you did not know you were in possession of it, no, legally you didn't posses it. At the same time, the substance was not in the possession of the owner, your friend, because you unknowingly possessed it. You walk, your friend walks out of the trial.

Your next question is does your friend get arrested in court. If he's very stupid and pulls out a separate bag and waggles it in the judge's face, than yes, he will. But he was never found in possession of the substance in your car, which is on trial, that was you. You offered evidence that you had no idea it was there and your friend said he owned it. So at the time he put it into the car, he had possession, but he's not on trial right now, you are, so guilt for possession at time it was discovered.

Finally, in order for his defense to get him in legal trouble, he needs to be currently in possession of the substance. He's not, it's being used as evidence by the state against you. If the state wants to find more weed on him, they would have to open a separate case and get a warrant to search his place for more, but that takes time. Unless you friend is the big time dealer, he's not going to be worth the effort. The State isn't going to return it to him because, illegal substance, they dispose of it once it's used up.

Basically:

  • Possession is illegal. Ownership is not. I know that it sounds bizarre, but that's what it means.
  • You are on trial not your friend. Anything he's testifying to will not hurt him, so long as he doesn't do anything off script.
  • Your lawyer will have a script.
  • Your friend can admit to owning the evidence against you, lending doubt to the claim you knew it was in the car. At the same time, he is not in possession of the evidence because the Prosecutor is currently holding it and no one is testifying against your friend. Further more, since there is no one there to creditably accuse your friend of once possessing the evidence, they cannot charge him with it (or rather they can, but they did not find it on him, but you. If he is charged, the fact that it was found on you would get it thrown out). The fact that he owned it at the time it was in your car again does not mean he possessed it in a legal sense.
  • Your friend may be given a search warrant, but if they didn't search your place upon your arrest, they probably will not search his either.
  • So when your arresting officer says he found the evidence on you, you pull up your friend who says "Sorry, Officer, it belonged to me... I left it in my friend's car by mistake and he didn't know." As it is a plausible explanation and no one lied, you are found innocent. If the state tries to try your friend for possession, the first whole the defense is going to see is that it was found on you, not your buddy.
  • That is a big enough whole that the Prosecutor will conclude that the risk of losing is not worth the gains from winning and likely won't pursue it. You do not have to testify for the state (where your testimony would be needed) and the Defense does not have to prove a damn thing beyond "He was never caught in possession of the stuff in the first place." is a good enough defense when you don't testify against them.

The only stupid thing you did is that you allowed the police to search your car without a warrant. Hate that you had to learn your lesson this way, but do not do it again.

Also, one final note... in the United States, 90% of all criminal cases are decided by deals outside of the court room. It's not so much that your buddy will be called into court to testify. It could be your lawyer wants to tell the prosecutor that he has a witnesses who will back up your claim that it is not yours and doesn't want her to call BS on his statement, so needs your bud to say yes. Again, you need not prove it's your friend's... only that what the prosecution says has a plausible counter story that is equally likely. Faced with that, you're innocent. They cannot prove you knew about it at time of arrest and they cannot prove your buddy possessed it in a potential trial against him. In both cases, when in doubt, the accused is innocent.

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If your friend left the marijuana in your car, then he was in possession of it prior to leaving it there, so he could be seen as admitting to a crime. Ideally, your friend would be represented by his own lawyer, as your interests are in conflict with his. Note that you can force your friend to take the stand; once there, he can refuse to testify.

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