Drugs or a Gun Found in a Car: New York’s Possession Presumptions

The situation this covers

Four people are in a car. Police stop it and find a gun under a seat, or drugs in the center console. Nobody admits it is theirs. Everyone is charged.

That outcome is not a mistake by the officer. New York law contains statutory presumptions that allow the finder of fact to infer that every occupant possessed what was found. Understanding what those presumptions do, and just as importantly what they do not do, is the whole of the defense.

Weapons: Penal Law 265.15

Under Penal Law 265.15, the presence of a firearm, rifle or shotgun in an automobile is presumptive evidence of possession by all persons occupying the vehicle.

The statute does not stop there, and the qualifications are where cases are won. The presumption does not apply in the same way where, among other circumstances, the weapon is found upon the person of one occupant, or where it is in a closed container or compartment that is not readily accessible to the occupants generally.

Drugs: Penal Law 220.25

Penal Law 220.25 creates a parallel presumption for controlled substances found in an automobile: their presence may be presumptive evidence of knowing possession by the occupants.

It carries its own exceptions, again including where the substance is found on the person of one occupant, or is in a container or compartment not readily accessible to the occupants. The precise subsection matters, and the charging instrument should be read against the statutory text rather than summarized.

Presumptive is not automatic

This is the point that gets lost, including in a great deal of writing on the subject.

These are rebuttable evidentiary presumptions, not rules of automatic criminal liability. They permit an inference. They do not relieve the prosecution of its burden to prove every element of the charged offense beyond a reasonable doubt, and they do not mean every occupant is convicted.

Describing the law as though drugs in a car make everyone in it automatically guilty is both wrong and unhelpful to someone deciding what to do next.

What actually gets argued

• Was the stop lawful? Everything downstream depends on it. If the stop had no lawful basis, or was extended beyond what that basis justified, the evidence it produced can be suppressed and the presumption never gets used.
• Was the search lawful? A closed container, a locked trunk and a glove compartment are not the same as an open console for search purposes.
• Does an exception apply? If the item was on one person, or in a compartment not readily accessible to the others, the statutory exception may take the presumption off the table for everyone else.
• Accessibility and proximity. Where the item was, who was sitting where, who owned the car and who was driving all bear on whether the inference is reasonable at all.
• Statements. These cases frequently turn on what people said at the roadside before anyone was advised of anything. Whether those statements were lawfully obtained is litigated in pre-trial motions.

What to do if this is your situation

Say nothing about the facts and ask for a lawyer. In a car stop with several occupants, the pressure to explain that it was not yours is enormous, and the explanations people give in that moment routinely place them closer to the item rather than further from it.

You do not have to convince the officer. The presumption is contested in court, on motions, with the records in hand.

Where these cases are heard in Nassau County

Weapon and drug charges arising from a vehicle stop start in the Nassau County District Court at 99 Main Street in Hempstead. If the charge is a felony and a grand jury indicts, it moves to Nassau County Court in Mineola.

Related: what happens at an arraignment and criminal defense in Nassau County.