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Lesson: Don’t Leave Your Drugs Out

weed baggie.jpgYes, it’s dumb to have illegal drugs, and even dumber to get caught with drugs laying out in the open, right there for everyone to see them. But as an Orlando defense lawyer, I don’t dwell too much on how people get themselves into such situations, but rather, how can I help defend the case. When drugs are in plain view for everyone to see, it’s easier for the state to prove knowledge of the drugs (duh), but it’s still difficult to prove a citizen has control of said drugs. Let’s take a look at just how tough it can be by reviewing the case of Martoral v. State, 946 So.2d 1240 (Fla. 4th DCA 2007).

Martoral was arrested because he was in the driver’s seat of a truck where marijuana was found in a compartment in the dash, in plain view. Others were in the truck as well, making this a “constructive possession” case. The court overturned Martoral’s conviction for possession of cannabis, finding that the state had proven the knowledge element, but noting that “the concepts of “dominion” and “control” involve more than the mere ability of the defendant to reach out and touch the item of contraband. Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs” Id. at 1243.

This is a common misconception of police officers. They think that, just because an item is within reach, and in plain view, that the defendant “must” have dominion and control over such drugs. The law says otherwise. An appeals court in Jean v. State put it this way, “[t]he difficulty with this analysis is that it does not separate the issue of the accused’s ability to maintain control over the substance from the issue of the accused’s knowledge of the presence of the controlled substance on the premises. It is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it.” 638 So.2d 995, at 996 (Fla. 4th DCA 1994).

The burden is on the state to prove dominion and control, and in cases where there are multiple people present (i.e. constructive possession cases), these elements require a type of independent evidence that, often times, sloppy police work simply doesn’t provide. There are numerous ways to prove, independently, that drugs found in plain view are linked to a certain individual. One easy way is fingerprints. Another way would be good ‘ol fashioned detective work. . .remember when cops used to conduct interviews, get witness statements, etc etc?