Under Florida law, there are two different ways you can possess something. The first is known as actual possession. Examples of actual possession would be having your phone in your pocket or a pen in your hand. Actual possession is what we all typically think of when we talk about possessing something. The second type of possession is called constructive possession. What qualifies as constructive possession can get complicated. Constructive possession happens when you have knowledge of where the item is and you have the ability to exercise “dominion and control” over that item. “Dominion and control” is legal talk for “it’s yours.” For example, imagine that you and I are sitting across the table from each other and there is a pen in between us. The pen belongs to me, not to you. You can see the pen, you know it’s there, but it’s mine, and when you go to take it I stop you. You do not have “dominion and control” over the pen. Make sense?
So how does constructive possession play out in criminal cases?
The most common scenario where constructive possession is at issue is drug possession cases. When someone gets pulled over and the police find some drugs in the center console, what happens? A lot hinges on whether or not you can establish that someone else had access to the vehicle. Oftentimes this is easily accomplished – you have a passenger in the vehicle. You can also do this by proving that car is titled in someone else’s name or by testifying about the other people that have used the car. If the drugs are not in plain view and you can establish that someone else had access then the government can’t prove the possession case again you. In these sorts of situations, the government needs some sort of independent proof that you were in constructive possession of those drugs. A confession is the most common way they do this, so be quiet and don’t say anything. Click here for a discussion on your right to remain silent.
I recently represented a client on appeal who was convicted of trafficking in methamphetamine. When the police came into the house to execute a search warrant my client was in the hallway just outside of the bathroom. His girlfriend was asleep in a bedroom of a house, a house owned by his mother, and also occupied by a cousin in high school. Inside the bedroom where his girlfriend was laying in bed the police found marijuana, cocaine, paraphernalia, and methamphetamine. My client’s photograph was in the bedroom, along with pieces of mail that had is address on them. The client went to trial in front on the judge and the trial judge found him guilty and sentenced him to seven years in prison. The appellate court agreed with me, reversed my client’s convictions and ordered him released from prison. The appellate court found that things like the photograph of my client and the bills with his name on them in the room next to the drugs were not enough to show that (1) my client knew the drugs were there or that (2) they were his. There was no telling if the bills will placed where they were before the drugs arrived in the bedroom, a photo of him in his mother’s house was not, by itself, unusual, and there was proof that other people had access to the bedroom the police said was his.
Constructive possession can be very difficult for the government to prove.
It can also be complicated and difficult to fully understand. If you have been charged with possession of drugs it is important to contact an experienced attorney to handle your case.
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