Published on:

Examples of When the State Cannot Prove Constructive Possession in Florida

In Florida, there are a lot of drug cases and gun cases that involve the concept of constructive possession. Actual possession is when the police find a gun or drugs on a person i.e. in his pocket, in his hand, in his waistband, sees him throw the drugs on the ground. Constructive possession is a lot more vague. The state can convict a person of a possession of drugs or gun charge based on constructive possession. However, it can be more difficult.

In layman’s terms, constructive possession means the illegal item(s) is in a place where it is sufficiently clear the suspect knew it was there and had some control over it. In other words, the state needs to present sufficient evidence for a jury to believe the defendant knew about the item(s) and either put it there or had the ability to remove it. The state does not, however, have to prove the defendant actually did place the item there or intended to take it away at some point.

Again, it is vague, but some examples might help clarify it. Of course, ultimately, it is up to a judge or jury to decide.

If you go to a big party and you see marijuana on the table a few feet away but never touch it or do anything with it and the police come in, you are not in constructive possession of those drugs. The state could probably prove you knew it was there, but they could not prove you have any control over it, just like most other people at the party. it is not illegal to be in the presence of illegal drugs, although it is not a good idea either as anything can happen in these constructive possession cases.

If you live in an apartment with two roommates and the police search it and find a bag of cocaine in a clothes drawer, you might have a problem if it can be proven that it is your room and your drawer of clothes. For instance, the police might present evidence that your wallet and personal documents were in the room and the shirts in the drawer appeared to be your size and there are other indications that the room belongs to you. Of course, you can argue that a roommate or someone else put the drugs there without your knowledge, but nothing says a judge or jury has to believe that. In this case, you might win, but there would probably be enough evidence to establish knowledge and the ability to control the cocaine.

In a recent case near Jacksonville, Florida, the police searched some property including a vehicle that was on the premises. Several people were also on the premises at the time. Upon searching the vehicle, the police found a gun in the closed center console. They also found a recent rental car agreement for the car in the defendant’s name right next to the gun in the center console. Since the defendant was a convicted felon, he was arrested for possession of a firearm by a convicted felon based on this evidence.

The defendant was actually convicted at trial, but fortunately for him, his criminal defense lawyer appealed, and the conviction was reversed. The court found that the rental car agreement next to the gun was not sufficient to prove possession. The rental car agreement was proof that the defendant rented the car, but it was not clear when the agreement was placed in the center console and when the gun was placed there. It was certainly possible that one of the other people at the property, or anyone else, drove the car or was in the car at some point and put the gun in the center console after the rental agreement was placed there. This case might have ended differently if the defendant was in the car at the time the police found the gun, particularly if the center console was open, but the fact that the defendant rented the vehicle did not mean he knew everything that was in the car days later, especially if the illegal item was not out in the open.