Indiana Law Blog
When you’re charged with drug possession in Indiana, the stakes are high—and the law can be a minefield. At Harshman Ponist Smith & Rayl, we’re committed to being your “Trusted Counsel Close to Home,” helping Hoosiers untangle complex criminal statutes like Indiana Code § 35-48-4-6. This law governs possession of controlled substances, from marijuana to methamphetamine, and its interpretation by the Indiana Court of Appeals often hinges on one deceptively simple word: “possession.” In 2025, understanding how courts define this term could be your key to a stronger defense. Let’s dive into the statute and see how appellate rulings shape its meaning.
The Drug Possession Statute: Breaking It Down
Under Indiana Code § 35-48-4-6(a), it’s unlawful to “knowingly or intentionally possess” a controlled substance like cocaine or a narcotic drug without a valid prescription. The penalty starts as a Class A misdemeanor (up to 1 year in jail and a $5,000 fine) but can escalate to a Level 6 felony if you have priors or aggravating factors—like possessing near a school. The statute doesn’t explicitly define “possess,” leaving room for courts to interpret what it means to “have” drugs. Is it enough that they’re near you? Do you need them in your pocket? The Indiana Court of Appeals has tackled these questions head-on.
“Possession”: Actual vs. Constructive
Indiana law recognizes two types of possession: actual (drugs on your person) and constructive (drugs you control but aren’t holding). The battleground is often constructive possession—where the state must prove you had both the ability and intent to control the substance. This distinction can make or break a case, and the Court of Appeals has offered critical guidance.
Consider Gee v. State (810 N.E.2d 338, Ind. Ct. App. 2004). Robert Gee was convicted of possessing cocaine found in a car he was driving. The drugs were in a bag on the passenger seat, not in his hands. Gee argued he didn’t know they were there, but the court upheld his conviction, ruling that constructive possession existed. Why? Proximity, exclusive control of the car, and his “nervous behavior” during the stop showed intent and ability to control the drugs. Gee teaches that possession doesn’t require physical touch—circumstantial evidence can seal the deal.
Now look at Wilburn v. State (No. 49A02-1407-CR-500, Ind. Ct. App. 2015). Michael Wilburn faced a possession charge after police found marijuana in a shared apartment. The drugs were in a common area, not his bedroom, and multiple people had access. The Court of Appeals reversed his conviction, finding insufficient evidence of constructive possession. Without proof tying Wilburn directly to the drugs—like fingerprints or exclusive control—the state fell short. Wilburn highlights a defense angle: if others could’ve possessed it, the prosecution’s case weakens.
Why This Matters in 2025
In 2025, drug possession cases are under a microscope as Indiana grapples with evolving drug trends—like synthetic cannabinoids and fentanyl-laced substances. The Court of Appeals continues to refine “possession,” especially in multi-occupant scenarios or digital-age crimes (e.g., ordering drugs online). Gee shows how everyday factors—like where you’re sitting—can convict you, while Wilburn offers hope when evidence is blurry. Prosecutors often lean on constructive possession to cast a wide net, but a sharp defense can poke holes in their assumptions.
At Harshman Ponist Smith & Rayl, we’ve seen how these rulings play out in Indiana courtrooms. The difference between actual and constructive possession isn’t just legal theory—it’s a lifeline. Challenging the state’s proof of intent or control can shift a case from felony to dismissal, especially when evidence is circumstantial.
Building Your Defense Close to Home
If you’re facing a drug possession charge, statutory interpretation isn’t abstract—it’s your fight. Was the substance yours, or just near you? Did you know it was there? The answers lie in cases like Gee and Wilburn, and applying them takes local know-how. As your “Trusted Counsel Close to Home,” Harshman Ponist Smith & Rayl digs into the details—questioning searches, witnesses, and the prosecution’s leap from “present” to “possessed.”
Charged with possession in Indiana? Contact us for a free consultation. We’ll unpack the statute, lean on the case law, and stand by you—right here in your backyard.