In Florida, in order for the state to prove a drug possession case, it has to prove that the defendant either actually possessed the illegal drugs or constructively possessed the illegal drugs. Actual possession is fairly straightforward. if a person is holding drugs or has them in his/her pocket, that would be actual possession. Constructive possession of drugs can be more complicated and can be more difficult to prove. It does not mean the state cannot prove drug possession, but it can certainly make it harder for the state to prove its drug case. Constructive possession basically means the drugs are located in a place where the defendant knows they exist and the defendant has some control over them.
As an example, I have some CD’s in a case in my car. I am nowhere near my car, but the car is in my name, a lot of other things belonging to me are in the car and I have the keys to the car which is locked right now. There is a strong argument that I am in constructive possession of my CD’s. Of course, this scenario also lends itself to some defenses to a possession charge. If other people also have keys to the car, I share the car with other people, other people’s belongings are also in the car and/or someone else is using my car when the police find the CD’s inside, there is an argument that those are not my CD’s and there is no evidence I put them there or even know they are in my car.
In a recent case near Jacksonville, Florida, undercover police officers conducted a purchase of Oxycodone pills from the defendant. They arrested the defendant for sale of Oxycodone. They went back to his residence, where he came from prior to the drug sale, and searched it. Inside, they found more Oxycodone and marijuana. The defendant was also charged with possession of marijuana and trafficking in Oxycodone for the drugs found in the house.
The criminal defense attorney moved to dismiss the possession of marijuana and trafficking in Oxycodone charges stemming from the drugs in the house based on the argument that he was neither in actual or constructive possession of those drugs. Yes, he had been in that house, but he presented evidence that he did not live in the house. He owned it, but he had a tenant in there and merely collected rent at that house. The defendant presented evidence that he actually lived in another city at the time.
The state could not contest this evidence and was unable to present any evidence to suggest the drugs were his other than the fact that they were found in a house that he owned. This is not sufficient for a constructive possession of drugs case. The state was required to prove a greater connection between the drugs and the defendant. With this minimal evidence, any landlord could be charged with drug possession if he/she visits a house where a tenant has drugs inside. Because the state did not have any further evidence, the possession of marijuana and trafficking in Oxycodone charges were thrown out.