Eric J. Dirga, P.A.

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Possession; Constructive Possession

Florida Case Law On Drug Offense Issues

Legal Opinions From The Florida Supreme Court And The District Courts Of Appeal

Last Updated: May 27, 2016

Please be patient. This page is being updated soon. Trying to organize this area of the law into something that can quickly be resorted to is taxing o the mind at best. Hopefully, this will provide all attorneys a valuable resource. (Most language describing the cases come directly from the mandate itself. I've just cut and paste it into the description to avoid any misinterpretations.)


Automobile: Owner, Solo

Automobile: Owner, Joint

Automobile: Non-Owner, Solo

Automobile: Non-Owner, Joint

Dwelling/Structure: Owner, Solo

Dwelling/Structure: Owner, Joint

Dwelling/Structure: Non-Owner, Solo

Dwelling/Structure: Non-Owner, Joint

Dwelling/Structure: Visitor

Outside/Other

Porter v. State, 88 So.3d 1074 (Fla. 1st DCA 2012): Trial court fundamentally erred in omitting portions of the standard jury instruction on constructive possession because the omission was pertinent and material to what the jury had to consider in order to convict.

Finklea v. State, 920 So.2d 156 (Fla. 1st DCA 2006): By reading the partial instruction, the trial court left out the "knowledge" portion of the definition of unlawful possession. This was error. Because the trial of this case essentially involved only one disputed issue, whether the appellant knew the unlawful items were in the bottle, the error cannot be considered harmless. Accordingly, we hold that the trial court abused its discretion in refusing to give a complete reinstruction and we REVERSE and REMAND for a new trial.

DEFINITIONS

Possession: “[P]hysical or constructive possession of the object or thing possessed, coupled with [the] knowledge of its presence.” Spataro v. State, 179 So. 2d 873, 877 (Fla. 2d DCA 1965); and Frank v. State, 199 So.2d 117, 120 (Fla. 1st DCA 1967).

Possession or control . . . means either actual physical possession with knowledge of the same or constructive possession[.] Griffin v. State, 276 So.2d 191, 192 (Fla. 4th DCA 1973).

Actual Possession: [A]ctual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession. Willis v. State, 320 So.2d 823, 824 (Fla. 4th DCA 1975). “Actual possession” of a controlled substance exists where a defendant has physical possession of contraband and knowledge of such possession. State v. Williams, 742 So.2d 509 (Fla. 1st DCA 1999).

Constructive Possession: “The accused has ‘constructive possession’ of a chattel where he has knowledge of its presence coupled with the ability to maintain control over it or reduce it to his physical possession, even though he does not have actual personal dominion.” Spataro v. State, 179 So. 2d 873, 877 (Fla. 2d DCA 1965); Frank v. State, 199 So.2d 117, 120 (Fla. 1st DCA 1967); Griffin v. State, 276 So.2d 191, 192 (Fla. 4th DCA 1973). “Constructive possession” of a controlled substance exists where a defendant does not have actual physical possession of contraband but knows of its presence on or about his premises and has the ability to exercise and maintain control over the contraband. State v. Williams, 742 So.2d 509 (Fla. 1st DCA 1999); Jordan v. State, 548 So.2d 737, 738 (Fla. 4th DCA 1989) (not elements); Medlin v. State, 279 So.2d 41, 42 (Fla. 4th DCA 1973); Willis v. State, 320 So.2d 823, 824-5 (Fla. 4th DCA 1975); Brown v. State, 428 So.2d 250, 252 (Fla. 1983); Cortez v. State, 488 So.2d 163, 164-165 (Fla. 1st DCA 1986); Brown v. State, 519 So.2d 1045, 1047 (Fla. 4th DCA 1988); Brown v. State, 8 So.3d 464, 465 (Fla. 2d DCA 2009); State v. Cadore, 36 Fla. L. Weekly D876 (Fla. 2d DCA, Apr 27, 2011).

Constructive Possession

To establish defendant’s constructive possession, the State was required to prove three essential elements: (1) his dominion and control over the contraband; (2) his knowledge that the contraband was within his presence; and (3) his knowledge of the illicit nature of the contraband.

Dominion and Control

Knowledge

Knowledge: “Proof of either actual or inferred knowledge by the accused that contraband articles were on the premises occupied by him at the time they were discovered is an essential and indispensable element of the offense which must be established[.] . . . This is not a mere technicality in the law, but a legal principle which must be observed in order to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge.” Frank v. State, 199 So.2d 117, 121 (Fla. 1st DCA 1967); see also Kirtley v. State, 245 So.2d 282, 283 (Fla. 3d DCA 1971).

Knowledge element is met when contraband is in plain view within a common area. See Brown v. State, 428 So.2d 250, 252 (Fla. 1983)

Evidence of mere occupancy in a jointly occupied place is insufficient to prove knowledge. See Chappell v. State, 457 So.2d 1133, 1134 (Fla. 1st DCA 1984).

“It is recognized that this knowledge may be established by actual incriminating statements . . . or circumstances from which the jury might infer knowledge.” Markman v. State, 210 So.2d 486, 487 (Fla. 3d DCA 1968).

Guilty knowledge can be presumed from the facts and evidence, and once shown that the contraband is found in the defendant’s home, in his own closet, in a box bearing his name and address, a jury question is created as to whether he had knowledge of the contraband’s presence. Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981)

Where defendant lived in an apartment with other people, and cocaine is found wrapped in plastic in a kitchen cabinet, the state must prove that the defendant had knowledge of the presence of the cocaine to sustain a conviction. The fact that an officer could smell the cocaine does not provide a sufficient basis to prove knowledge. DeLaCruz v. State, 29 F.L.W. D2044 (Fla. 2d DCA 2004)(See this case for a discussion of constructive possession elements.)

Section 893.101 creates an affirmative defense in a drug possession case for the lack of knowledge of the illicit nature of a controlled substance. When the affirmative defense is raised, the jury shall be instructed on the permissive presumption as set out in §893.101(3). Section 893.101 does not violate due process by shifting the burden of proof to the defendant to prove that he lacked knowledge of the nature of the substance. Because knowledge is not an element of the crime, making lack of knowledge a defense does not violate due process. The failure to give an instruction that tells the jury that lack of knowledge is a defense to the crime is reversible error. Burnette v. State, 30 F.L.W. D1064 (Fla. 2d DCA 2005).

The fact that a person who is in actual possession of a substance is presumed to know of the presence of the substances is different than presuming that the defendant knew the nature of the substance. While a person in actual possession is presumed to know the presence of the item, the state still must prove that the defendant knew that the item was contraband. State v. Williamson, 813 So.2d 61 (Fla. 2002).

A gun found under the seat cushion of defendant’s wheelchair. Held: The evidence is insufficient to show possession of a firearm. There was evidence that defendant was unable to place firearm under the cushion and that he could not feel it. The evidence does not show knowledge of the presence of the gun. Thompson v. State, 30 F.L.W. D2308 (Fla. 4th DCA 2005); Compare Hunter v. State, 30 F.L.W. D2347 (Fla. 4th DCA 2005).

The presence of marijuana smoke is insufficient proof of the knowledge element of constructive possession in a group setting. C.M. v. State, 818 So.2d 554 (Fla. 2d DCA 2002).

Plain View/Concealed: Contraband found in plain view of the owner or occupant of a jointly controlled place is sufficient to sustain a conviction for constructive possession. See Brown v. State, 428 So.2d 250 (Fla. 1983). [T]here was no evidence presented to establish that [the defendant] knew of the presence since it was found in closed containers. Cortez v. State, 488 So.2d 163, 165 (Fla. 1st DCA 1986). Neary v. State, 384 So.2d 881 (Fla. 1980); State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979); Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978).

Probable Cause: “The test to determine probable cause to arrest is whether ‘the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.” Dixon v. State, 343 So.2d 1345, 1348 (Fla. 2d DCA 1977)(citing Benefield v. State, 160 So.2d 706, 708 (Fla. 1964)). To give rise to probable cause, there must be facts sufficient to create a reasonable belief as to each of the elements of the offense. Rogers v. State, 586 So.2d 1148, 1152 (Fla. 2d DCA 1991).

CIRCUMSTANTIAL EVIDENCE

Allen v. State, 622 So.2d 526 (Fla. 2d DCA 1993).

State v. Cadore, 36 Fla. L. Weekly D876 (Fla. 2d DCA, Apr 27, 2011).

Commonly Used Items: A conviction cannot be sustained if the only evidence is the residue of a controlled substance on a commonly used item.

Andres v. State, 787 So.2d 54 (Fla. 2d DCA 2001)( finding that defendant's conviction for possession of cocaine was supported by evidence of cocaine residue found in glass pipe which was of the type commonly used for smoking street level narcotics.)

INFERENCES

“Where one has exclusive possession of a home or apartment in which narcotics are found, it may be inferred . . . that such person knew of the presence of the narcotic and had control of them.” Spataro v. State, 179 So. 2d 873, 877 (Fla. 2d DCA 1965)(citing Evans v. United States, 257 F.2d 121, 128 (9th Cir. 1958)); Murphy v. State, 511 So.2d 397, 399 (Fla. 4th DCA 1987); Frank v. State, 199 So.2d 117, 120 (Fla. 1st DCA 1967). “If the premises on which the controlled substance is found is in the exclusive possession and control of the accused, knowledge of the presence of said controlled substance on the premises, coupled with accused’s ability to maintain control over it, may be inferred.” Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976); Willis v. State, 320 So.2d 823, 825 (Fla. 4th DCA 1975); Wale v. State, 397 So.2d 738, 739-40 (Fla. 4th DCA 1981).

“Although no further proof of knowlwdge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive.” Frank v. State, 199 So.2d 117, 120 (Fla. 1st DCA 1967)

“The essential issue is whether the circumstance that a package of marijuana was in a vehicle containing three passengers and the defendant driver established that the defendant was guilty of unlawful possession of marijuana. I would hold that it did not because it does not exclude the reasonable hypothesis that one of the three passengers left the package in the vehicle when the police stopped the vehicle and permitted the passengers to leave. Zicca v. State, 232 So.2d 414, 416 (Fla. 3d DCA 1970)(Chief Judge Pearson dissenting).

“[M]erely because the defendant had control of the [jointly occupied] vehicle does not show that defendant had the ability to maintain control over the [contraband][.]” Corson v. State, 527 So.2d 928, 929 (Fla. 5th DCA 1988).

“If . . . the premises on which the contraband is found is in the possession of two or more jointly, knowledge of the presence of the contraband on the premises and the accused’s ability to maintain control over it will not be inferred, but must be established by proof. [citations omitted] (E.A.M. v. State, 684 So.2d 283, 284 (Fla. 2d DCA 1996)); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Willis v. State, 320 So.2d 823, 825 (Fla. 4th DCA 1975); see also Griffin v. State, 276 So.2d 191, 193 (Fla. 4th DCA 1973); Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981); Brown v. State, 428 So.2d 250, 252 (Fla. 1983); Brown v. State, 519 So.2d 1045, 1047 (Fla. 4th DCA 1988). Such proof may consist of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises.” Murphy v. State, 511 So.2d 397, 399 (Fla. 4th DCA 1987)(Citing Hively)(emphasis added); see also Soler v. State, 547 So.2d 251, 252 (Fla. 4th DCA 1989); Jordan v. State, 548 So.2d 737, 739 (Fla. 4th DCA 1989); Cordero v. State, 589 So.2d 407, 409 (Fla. 5th DCA 1991); Griffin v. State, 276 So.2d 191, 193 (Fla. 4th DCA 1973)(indicating that the state must present “evidence other than the evidence of the defendant’s non-exclusive possession of the premises”); Medlin v. State, 279 So.2d 41, 42 (Fla. 4th DCA 1973); Willis v. State, 320 So.2d 823, 825 (Fla. 4th DCA 1975); Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981).

MOTIONS

C4 Motion to Dismiss: “The fact that certain of the facts contained in the motion might not, . . . have been personally known to the defendant is of no moment in this case for three reasons: (1) the state did not contest the truth of any of these facts by filing a traverse below, (2) the state at no time contested the procedural regularity of the motion to dismiss in the trial court, and (3) a motion to dismiss [C4] does not require . . . that the defendant have personal knowledge of all the facts contained in the motion – as it requires only that the defendant state under oath that the facts stated in the motion are the material, undisputed facts in the case. (citations omitted). Devine v. State, 504 So.2d 788 (Fla. 3d DCA 1987).

C4 Motion to Dismiss (pitfalls): At issue . . . is whether, assuming the veracity of all of the facts contained in the appellant’s sworn motion to dismiss and the State’s traverse, the State has alleged a prima facie case of the appellant’s guilt. (cite to rule omitted) In answering this question, [the appellate court] must accept the facts and every reasonable inference derived from them in a light most favorable to the State. (Emphasis added) Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981).

C4 Motion not sufficient for appeal: Where the undisputed facts are such as these, the underlying controversy should not be resolved by a “battle of affidavits.” Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981)

STANDARDS

Standards of Review regarding Evidence

“[T]he issue of knowledge, as an element of constructive possession, is an ultimate question which a jury must decide on factual inferences; it is not subject to a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). State v. Duran, 550 So.2d 45, 46 (Fla. 3d DCA 1989)(citing numerous cases).

Finklea v. State, 31 FLW D371 (Fla. 1st DCA 2006)(finding that failure to give complete instruction to jury when asked for rereading requires reversal. Jury asked for definition of possession and judge failed to instruct on defense of lack of knowledge.)

“[T]he rule that where the defendant has joint control of the premises where contraband is discovered the evidence must go further and show that the defendant had some knowledge that the contraband was on the premises.” Langdon v. State, 235 So.2d 321 (Fla. 3d DCA 1970).

“Where there is no evidence from which dominion or control of the contraband can be inferred, a judgment of acquittal is proper.” Allen v. State, 622 So.2d 526, 528 (Fla. 2d DCA 1993)

The applicable standard of review of the denial of a motion for judgment of acquittal is to determine whether the jury may reasonably conclude that the evidence fails to exclude every reasonable hypothesis but that of guilt. Murphy v. State, 511 So.2d 397, 399 (Fla. 4th DCA 1987)(indicating possession of large quantity of money not enough to infer knowledge)(emphasis added); Torres v. State, 253 So.2d 450, 451 (Fla. 3d DCA 1971)(stating that “where the jury may have inferred from the evidence that appellant had custody of the apartment but the record [did] not contain sufficient facts to support that inference as the only reasonable inference from the evidence” the judgment and sentenced must be reversed).

Harmless Error Analysis places the burden on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or that there is no reasonable possibility that the error contributed to the conviction. If the appellate court is unable to conclude beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. State v. DiGuillo, 491 So.2d 1129 (Fla. 1986).

“Mere proximity to the contraband, without more, is legally insufficient to prove possession.” McClain v. State, 559 So.2d 425, 426 (Fla. 4th DCA 1990)(citing Wallace v. State, 553 So.2d 777 (Fla. 4th DCA 1989) and Agee v. State, 522 So.2d 1044 (Fla. 2d DCA 1988)); Lewis v. State, 570 So.2d 346, 348 (Fla. 2d DCA 1990)(citing Johnson v. State, 456 So.2d 923 (Fla. 3d DCA 1984)); Rogers v. State, 586 So.2d 1148, 1152 (Fla. 2d DCA 1991)(citing Edwards v. State, 532 So.2d 1311 (Fla. 1st DCA 1988) reviewed denied, 542 So.2d 990 (Fla. 1989)); see also Cordero v. State, 589 So.2d 407, 409 (Fla. 5th DCA 1991); Allen v. State, 622 So.2d 526, 528 (Fla. 2d DCA 1993); See, Foster v. State, 969 So.2d 1202 (Fla. 1st DCA 2007)(Finding that cocaine found on the ground near defendant was insufficient to prove possession despite finding crack pipe in his pocket).

Reasonable cause to search an automobile does not justify the search of one of its occupants. United States v. Di Re-----, 332 U.S. 581 (1948).

When the State attempts to prove its case using circumstantial evidence, such evidence must provide substantial and competent evidence inconsistent with a defendant’s reasonable hypothesis of innocence. State v. Law, 559 So.2d 187 (Fla. 1989).

Appellate review of a motion to suppress evidence must be reviewed, as for the facts, in the light most favorable to the State (Young v. State, 579 So.2d 721 (Fla. 1991)); as for the law, de novo.

The specificity of an informant’s information, by itself, is insufficient to establish probable cause until validated by a law enforcement officer’s observations. Rogers v. State, 586 So.2d 1148, 1150-1151 (Fla. 2d DCA 1991)(numerous citations omitted).

CASE PRESUMPTIONS: Medlin v. State, 279 So.2d 41 (Fla. 4th DCA 1973): Brown v. State, 428 So.2d 250 (Fla. 1983): The knowledge element is met when contraband is found in both plain view and concealed in “common areas” throughout a residence, and the dominion and control element is met because a “resident owner” has control over the “common areas.” See Brown v. State, 519 So.2d 1045, 1047 (Fla. 4th DCA 1988).



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