Mere Proximity to Drugs is Not Enough to Convict (part 2?)

cocaine.jpgIn Orlando, just being close to some drugs may get you arrested for Possession of a Controlled Substance. But getting arrested for a charge doesn't mean a conviction is proper, and being near a drug doesn't make you guilty of possessing it. Let's take a look at one such Florida case, Isaac v. State, 730 So.2d 757 (Fla. 2d DCA 1999). In Isaac, the police saw two men standing about a foot apart, passing an object between them. The men noticed the cop's gaze, and one of them dropped a plastic baggie on the ground, then both walked away. The officer's never saw which of them dropped the baggie (can you believe the honesty here? Wow.). The baggie contained cocaine and Isaac was convicted of possession of cocaine.

The appeals court reversed Isaac's conviction, noting that the state had the burden of excluding every reasonable hypothesis of innocence, holding that "To be sure, the circumstances suggested that one or both men possessed the cocaine. At the same time, however, those circumstances did not exclude the reasonable hypotheses that the men found the baggie at that spot and were simply examining it when the policemen happened by, or that the other fellow brought the cocaine there and was showing to Isaac." Id at 758.

The court further further noted that "Mere proximity to contraband is not enough to establish dominion and control", noting that "Because the State could not establish that Isaac had actual possession of the baggie, it was obliged to prove that he possessed it constructively. To do so, the state was required to show that Isaac had dominion and control over the cocaine, was aware of its presence, and knew of its illicit nature". Id. Citations omitted.

Dropped drugs, or "throw down" cases, are common in Orlando, and probably most other cities. These cases are suspect, because police just happen to witness exactly who threw down the drugs. I like the Isaac case because it's one of the few where the police actually admit that they did not see who threw down the drugs. I've been defending Orlando drug cases since 1993, and I can count on one hand how many throw down cases like Isaac's whereby the cops admit that they "didn't" see who threw down the drugs.