When will people ever learn? I try to tell them, even at the risk of losing business (yes, I have my unselfish moments). But nobody listens, and we Orlando criminal attorneys continue to stay in business… So it bears repeating–drugs in the trunk are never a good thing, especially if you decide to drive over the speed limit. But, as fate would have it, our favorite constructive possession laws kick in to save the day. Let’s take a look at the action up close…
In Gizaw v. State, 2011 WL 234024 (Fla. 2nd DCA 2011), the defendant was stopped for speeding, and eventually found guilty of various charges arising out of the marijuana found in her trunk, including trafficking in cannabis, possession of a conveyance used for trafficking, and possession of drug paraphernalia. Gizaw gave police permission to search, and police admitted that the passenger’s current probationary status for a drug offense prompted them to request said search.
The search of the trunk revealed men’s jeans, some college textbooks that belonged to Gizaw (she admitted to being a college student), and a suitcase full of cannabis. No fingerprints were recovered, no evidence the suitcase belonged to Gizaw, and she denied all knowledge of the drugs. She had $939 cash on her person, and the passenger had the keys to the car all day (she did not know how the suitcase got in the trunk). The jury convicted her of all counts, and she was sentenced to 42 months prison.
Now, remember everything I’ve told you about constructive possession? The state must prove that Gizaw (1) knew of the presence of the suitcase with cannabis inside and (2) was able to exercise dominion and control over it. The Second District overturned Gizaw’s conviction, noting that “the State did not present any independent proof of Gizaw’s knowledge or dominion and control over the cannabis found in the trunk of the car. Although the car was Gizaw’s, Nelson had the keys to it and access to the trunk during the visit to Miami. Also, while the State asserted that Gizaw’s possession of $939 in cash constituted independent proof of her knowledge and dominion and control over the cannabis, the State did not connect this money to the cannabis.” Id.
The issue of “independent proof” is an important one, as the appeals court further held that “the State’s evidence in this case does not rule out the possibility that the cannabis belonged to the passenger …. there was no evidence linking her to the container holding the drugs.” Id.