Constructive Possession of Drugs in Florida

What is the Difference Between Actual Possession and Constructive Possession of a Controlled Substance?

Constructive Possession of Drugs in Florida 

What is Actual Possession of Drugs in Florida?

One Florida court, Sasser v. State, 67 So. 3d 1150, 1152 (Fla. 2d DCA 2011) defined Actual Possession of Drugs in Florida as  "[A]ctual possession is shown when contraband is found in the defendant's hand, or his person, or within reach and under the defendant's control." (quoting Bennett v. State, 46 So. 3d 1181, 1183-84 (Fla. 2d DCA 2010)).  

What is Constructive Possession of Drugs in Florida?

To convict on a theory of constructive possession, the State is required to prove beyond a reasonable doubt (1) that the defendant had knowledge of the contraband and (2) that she had the ability to exercise dominion and control over the contraband.  See Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016); Santiago v. State, 991 So. 2d 439, 441 (Fla. 2d DCA 2008). Another issue is what happens when drugs are found near the person arrested. You can learn more about how another court ruled on constructive possession of drugs found near a person in Florida here. we have written another article about questions that must be answered for a prosecutor to establish that a suspect has possessed drugs here.

What happens where drugs are found in a room with more than one occupant?

Tampa Oxycodone Drug Crime Conviction Overturned

Tampa Oxycodone Drug Crime Attorney

Tampa Oxycodone Drug Crime Attorney reports Oxycodone  "Conviction Overturned Where defendant was driving jointly-occupied truck and contraband was found after a stop for an expired tag, state established constructive possession of paraphernalia found behind truck visor because defendant's repeated fumbling with items behind visor and nervous appearance provide independent proof of  knowledge and control over paraphernalia."

Court also found, "Knowledge of oxycodone pills is established by their being in plain sight on floor of vehicle among litter, but dominion and control are not sufficiently established by driver's nervousness and proximity to the pills in jointly occupied vehicle -- Conviction for possession of controlled substance reversed . . . "

Source FLW October 16, 2013 Case No. 2D12-1794

Excerpts:

"[Defendant] seeks review of his judgment and sentence for possession of a controlled substance and possession of paraphernalia. Smith argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence to establish his constructive possession of the controlled substance and paraphernalia."

"If the area where the contraband was found was in Smith's exclusive possession, then we could infer knowledge and control. See id. In this case, however, Smith was traveling with a female passenger. Thus, knowledge and control over the areas accessible to the passenger cannot be inferred but must be proven by independent proof. Mere proximity to the contraband is insufficient in itself to meet this burden. Id. at 218."

"As for the oxycodone pills, the fact that the pills were in plain view on the floor of the vehicle near Smith's feet, even among the litter in the vehicle, established Smith's knowledge. See Jiles v. State, 984 So. 2d 622, 623 (Fla. 2d DCA 2008) ("[T]he location of contraband in plain view of the defendant is sufficient to establish the knowledge element of constructive possession."). However, the concept of dominion and control is separate from that of knowledge. Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007). And it requires "more than the mere ability of the defendant to reach out and touch the item of contraband." Id. "

"The only evidence suggestive of Smith's dominion and control over the oxycodone pills was his nervousness upon being stopped. However, nervousness itself does not provide legally sufficient evidence of dominion or control because it could be attributed to the fact that Smith's vehicle had been stopped or that he was in possession of the paraphernalia. See Hill v. State, 736 So. 2d 133, 134 (Fla. 1st DCA 1999)."

"Accordingly, there was insufficient evidence to sustain Smith's conviction for possession of a controlled substance. See Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006) (holding that the State did not prove the driver's constructive possession of a pipe found on the driver's floorboard of his jointly-occupied vehicle because there was no evidence of dominion and control aside from the driver's mere proximity to the pipe); Cruz v. State, 744 So. 2d 568, 569 (Fla. 2d DCA 1999) (same). "