It is not uncommon for police to find drugs in vehicles or homes where multiple people may have equal access to them. In cases in which the prosecution cannot show that the defendant had actual possession of the drugs, the prosecution must show that the defendant had constructive possession of the drugs to support a possession charge.  Simply showing that the defendant was near the drugs is not sufficient to prove a possession case.

The Fifth District recently considered whether the prosecution’s evidence was strong enough to support a possession charge in the case of Session v. State.  In this case, police officers observed the defendant and another person in a vehicle that neither of them owned.  The court stated that the defendant “was rolling a joint” in the driver’s seat.  The other person was in the passenger seat.  The officer saw a baggie of morphine and several baggies of crack on the center console between them.  The bags were in reach of both people, and there was no physical evidence showing that either of them had touched the bags.  Neither of them confessed or made inculpatory statements.  The defendant moved for judgment of acquittal on the possession of a controlled substance charge, but the trial court denied the motion.  The defendant appealed the denial of his motion, but he did not appeal his conviction for possession of cannabis.

The appeals court noted that Florida case law has established two elements that must be proven to show constructive possession when the drugs are within reach of multiple possible possessors.  The prosecution must prove that the defendant knew the drugs were present and that he “had the ability to exercise dominion or control over it.”  On appeal, the defendant did not argue that the state failed to prove he had knowledge of the presence of the drugs.  In this case, it was the dominion or control element that was at issue.

The court clarified that “mere proximity” to the drugs is not sufficient to show that the defendant had the ability to exercise dominion or control.  In this case, the state had only shown that the drugs were present in the vehicle in a location equally close to each occupant.  The appeals court found this was not enough to meet the dominion or control element.  The state had therefore failed to prove constructive possession of the drugs.  The appeals court found the trial court erred in denying the motion for judgment of acquittal and reversed and remanded.

This case shows that the prosecution must prove a case of possession and cannot rely solely on the defendant’s proximity to the drugs when others are equally near.  If you are facing charges of drug possession, the South Florida drug possession attorneys at Anidjar & Levine have the skill and experience to defend your rights. Call us at (800) 747-3733, or submit an online “Contact Us” form.

Related Blog Posts:

Evidence Falls Short in Florida Drug Conveyance Case – Delgado-George v. State

Florida Court Says Man Who Came Out of House Not Responsible for Marijuana in It – Evans v. State