When police find drugs such as marijuana, crack, cocaine and methamphetamine in a particular place, they often arrest everyone in the vicinity of the drugs because they are not sure who exactly owned and/or was in possession of the drugs. However, this is not proper under Florida law, and criminal defense lawyers can often get these cases relying on constructive possession of drugs thrown out of court.
In Florida, there are two ways to possess drugs which can lead to a valid possession of drugs charge. The obvious one is actual possession. If you are holding a bag of marijuana or have a bag of cocaine in your pocket, that is actual possession of drugs. However, even if you do not have the drugs on you, you can still be charged with possession of drugs. The other kind of possession is constructive possession which can also lead to a legitimate possession of drugs charge if the elements can be proven. In order to establish constructive possession, the state has to show that you knew about the drugs and maintained some control over the drugs. For instance, if the police find a bag of marijuana in a room that you live in by yourself in a drawer with your wallet and other items belonging to you, you may not be in actual possession of the drugs but there is an argument that you are in constructive possession of the marijuana. As another example, I am not in my car, but I know I have CD’s in my locked car and I have control over them so I am in constructive possession of those CD’s.
On the other hand, if I go over to a party at a friend’s house and police come in and find a bag of cocaine in the closed cookie jar next to where I am standing, I am not in constructive possession of that cocaine because it cannot be proven that I knew the cocaine was in there or that I had any custody or control over the cocaine. Of course, an incriminating statement admitting knowledge of the drugs can go a long way towards disrupting that defense.
In a recent possession of marijuana case south of Jacksonville, Florida, police responded to a possible burglary call at a vacant residence. The police arrived and saw four people in a room that smelled of marijuana. Two of the people dropped bags of marijuana. The defendant in the case did not have any marijuana on him, but another bag of marijuana was found in the room. The defendant did say he was there to smoke.
The two people who dropped bags of marijuana were properly charged with possession of marijuana. However, the defendant was improperly charged with possession of marijuana, and that charge was ultimately dropped. The defendant did not have any marijuana on him, and the state could not prove that he knew about the bags marijuana and had any sort of custody or control over the marijuana. Of course, his statement about being there to smoke made this a close call. The defendant should have just kept quiet. However, that statement could certainly be interpreted to mean he was there to smoke cigarettes. Because that was a reasonable explanation for his statement, there was insufficient evidence to prove that he was in constructive possession of the marijuana.