Actual Possession vs. Constructive Possession

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10th Apr 2018

In Florida, unless law enforcement finds the xanax or illegal narcotic ON you (“actual possession”), the prosecutors have to proceed on a theory of “constructive possession.”  It is important to note that in Florida, there is an important distinction between ownership of the illegal substance and possession of it. See Scruggs v. State, 785 So.2d 605, 607 (Fla. 4th DCA 2001). Cases of constructive possession are infinitely more difficult for prosecutors to prove. Here’s why:

Actual possession” means that the K2 or spice, or illegal narcotics were actually found in your pockets, your hands, or wallet, etc). If you borrow a pair of jeans from your friend and they just so happen to have some K2 or spice in the pockets that you’re unaware of, guess what, you’re getting charged with a Third Degree Felony facing up to 5 years in prison.

The other type of possession is “constructive possession”. Constructive possession means that the drugs were not actually found in your hands or pockets, but in an area where the person had knowledge of the drugs and had the ability to access and exercise “dominion and control” over the drugs.

In constructive possession cases, prosecutors have to prove that you had “dominion and control” over the K2 or spice or illegal narcotics, knowledge of its presence, the ability to maintain control over it, and knowledge of its illicit nature. So plainly put, you had control of the area where the drugs were found, you knew the drugs were there, you had the ability to grab the drugs, and you knew the drugs were illegal. Proving just one of these elements is not enough, the prosecutors have to prove each element of constructive possession. In the case of exclusive possession by the accused, these elements may be inferred, otherwise it must be proven by the State by affirmative evidence. Brown v. State, 428 So.2d 250 (Fla. 1983); Arant v. State, 256 So.2d 515, 516 (Fla. 1st DCA 1972).

Constructive possession becomes a real problem for prosecutors when you run into issues where they don’t have a whole lot of evidence against you. For example, what if the State pulls you over in a car that didn’t belong to you, find some drugs in an envelope or box tucked away in a hidden place in the car, and that box or envelope just so happened to have your fingerprint on it. Slam dunk case for the prosecution right? Wrong. In Arant v. State, the defendant was charged with possession of marijuana. A search was conducted of a female companion’s home and police recovered a single fingerprint of defendant on a potato chip can, which contained a marijuana plant. The State also proved that the defendant frequently visited the home. The Court ruled, “[t]he fingerprint proves quite conclusively that appellant touched the can. It tells us nothing about when…. Obviously the trier of fact thought it probable that the print was made after the plant’s presence in the can was manifest. But guilt cannot rest on mere probabilities. It is no less probable that the print was made before the plant was put in the can or perhaps while it contained a seed not yet visible. The State’s hypothesis that the print proves possession, even if we held it consistent with guilt, is no less consistent with innocence….” Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972); accord Tanksley v. State, 332 So.2d 76 (Fla. 2d DCA 1976).