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How Tough Is It to Prove Constructive Drug Possession?

duffle bag.jpgPossession of cannabis, possession of cocaine, possession of oxycodone, possession of hydrocodone. All these possession charges can only be proven by the old Real Estate slogan–location, location, location. The location of a drug can be described as either “actual” possession or “constructive” possession. Actual possession is a simple concept that refers to drugs that are located in a person’s pocket, in a person’s hand, bra, socks, wherever drugs may be hidden on the human body.

But, prosecutors can also prove drug possession even when the drugs are not located “on” the person. This is known as constructive possession, and it’s proven where the accused does not have physical possession of the contraband but knows of its presence on or about the premises and can maintain dominion and control over it. It’s tough to prove constructive possession, because the prosecution must show knowledge of the “presence” of the drugs, plus dominion and control over it. When drugs are found and there’s proof that the accused had knowledge of the drugs presence, that’s still a not guilty (because dominion and control must also be proven).

One great Florida case that illustrates this situation is Evans v. State, 32 So.3d 188 (Fla. 1st DCA 2010). Michael Jay Evans (appellant) was found guilty by a jury of constructive possession of two controlled substances. Evans’ home was searched while he and a few others were present. In Evans’ bedroom, on top of his bed, the police found a duffel bag. Inside the duffel bag, officers found Evans’ passort, and a small toiletry bag which contained illegal pills and MDMA. So, drugs found next to your passport, in your bedroom, on your bed–an easy conviction, right? Wrong. It all comes down to whether or not the home was occupied jointly or by one person. In Evans’ case, the home was in joint possession. Joint possession makes the prosecutor’s job expedientially more difficult, let’s see why.

When drugs are found in a place occupied by several people (jointly occupied), the state cannot prove the “knowledge” or “ability to maintain dominion and control” element from mere ownership of the bedroom or proximity to the drugs. The State must establish both elements by independent proof. The state argued that the presence of appellant’s passport in the duffel bag suggests he could have placed the passport there and thus Evans knew of the drugs. The appellate court disagreed, stating that “[s]uch an inference, however, provides no time frame with regard to when the contraband came to reside in the bag, nor any help as to appellant’s present dominion over the contraband. Without more, the mere presence of the passport is no better proof of appellant’s knowledge of, and dominion over, the contraband”. Id. Thankfully, the First District Court of Appeals overturned Evans’ convictions, reasoning that neither knowledge nor control over the drugs were proven under these facts. So, when faced with apparently hopeless facts, call an experienced criminal defense attorney, I know a great one in Orlando….