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An Example of Insufficient Evidence to Prove Constructive Possession of Marijuana in Florida

In Florida, the state can prove possession in one of two ways. The most obvious involves actual possession. For instance, marijuana found in a person’s hand or pocket would constitute actual possession of marijuana. However, even when a person is not in actual possession of drugs, the state can still prove possession of the drugs under certain circumstances. This other situation involves constructive possession of drugs. For instance, if the police search a person’s house and find a bag of cocaine on that person’s dresser right next to his bed, along with other items belonging to him in room belonging to him where he is the only occupant of the room at the time, that may be sufficient to prove a case of constructive possession of cocaine.

In order to prove constructive possession of drugs, the state needs to prove that the suspect knew the drugs were present and had some sort control over the drugs. For instance, if you go to a party with hundreds of people, you are standing in the kitchen by yourself next to the closed refrigerator and the police come and find a bag of marijuana in that refrigerator, they cannot convict you of possession of marijuana without proof that you knew the marijuana was in the refrigerator and you had some sort of control over it, i.e. you put it there or used some of it. You may have been the closest to the marijuana, but that is just one potentially relevant factor. Without evidence that you knew the marijuana was present and had some significant connection to it, that marijuana cannot be attributed to you in a criminal case.

In a recent criminal case near Jacksonville, Florida, the police pulled a car over for speeding. The police obtained consent to search the car and found a suitcase containing marijuana in the trunk of the vehicle. The police then arrested the driver for trafficking in cannabis/marijuana. There was also a passenger in the vehicle who had the keys to the vehicle prior to the driver.

The trafficking in marijuana case was ultimately thrown out because the state could not prove the driver was in constructive possession of the suitcase containing the marijuana. The police could not get any fingerprints from the suitcase or the marijuana wrapping. Nothing belonging to the driver was found in the suitcase with the marijuana. The driver did not make any statements admitting to possessing, or even knowing about, the marijuana in the trunk. As a result, there was not enough evidence that the driver knew the marijuana was in the suitcase in the trunk or that the driver had sufficient control over that marijuana.

However, one way the police frequently get around this constructive possession problem is to ask the driver, or anyone else in the vehicle, to whom the marijuana or other drugs belong. This question may come with a threat to arrest everyone involved if no one answers or a promise to go easy on anyone who does answer. When asked this question, keep in mind that you have a right to remain silent and one of the most common ways the police and the state get the missing evidence they need to prove drug possession in these kinds of cases is when the suspect, for whatever reason, admits to ownership, or at least knowledge, of the illegal drugs.