Posted On: March 31, 2008 by Shorstein, Lasnetski & Gihon

Constructive Possession of Drugs in Case Where Florida Conviction Was Reversed

In a recent possession of marijuana and possession of cocaine case in Florida, the convictions of the defendant on those drug charges were reversed because the state prosecutor was unable to prove that the defendant was in either actual or constructive possession of the drugs.

What constitutes actual possession of drugs in Florida is usually simple. If a person is holding a bag of marijuana in his or her hand or if a person has cocaine in his or her pocket, they are in actual possession of those drugs. However, police often arrest people, and the state often charges people, when drugs are found near a person or in a house or car owned or occupied by a person. In those cases, the police and prosecutors rely on the concept of constructive possession of drugs.

A recent Florida criminal case explains what this means and explains a situation where such charges are improper. In this case, Mr. Robinson lived in a house with three other people. The police searched the house pursuant to a search warrant and found marijuana and cocaine inside a ceramic decoration in the kitchen that had been hollowed out. No fingerprints were taken from the decoration. The police arrested Mr. Robinson, the owner of the house.

Clearly, Mr. Robinson was not in actual possession of the drugs. The police arrested him because he was the owner and relied on the theory that Mr. Robinson was in constructive possession of the drugs. This means that he knew the drugs were in his house and had the ability and authority to exercise control over the drugs. When the state is relying on constructive possession, they usually have to prove that the defendant knew the drugs were there and had the authority to control them with independent evidence. They cannot just show that the defendant lived in or owned the house or even was close to the drugs, especially when other people also live there. Examples of the extra proof the state needs is a statement from the defendant or a witness tying the defendant to those drugs or a situation where the drugs were found immediately near the defendant in plan view, not hidden.

In the Robinson case, the state could only prove that Mr. Robinson owned and lived in the house. The drugs were concealed so that a person would not know they were in the decoration just because the person was in the house. There was no specific evidence that Mr. Robinson put the drugs in the ceramic decoration or even knew they were there. There was nothing concrete tying him to the drugs, and the state could not prove he was in constructive possession of those drugs. As a result, his conviction was reversed.