The Caldarone Law Group, P.A.

Whose drugs are they?

If you face drug charges in Florida, your freedom could be at stake. Depending upon which drug and how much of it law enforcement officers allege you possessed at the time they arrested you, a conviction could result in a long jail or prison term plus a hefty fine.

Regardless of what drug charges you face, however, a conviction requires the prosecutor to first prove that you actually possessed the drugs in question. (S)he has two ways to do this: proving actual possession or proving constructive possession.

Actual versus constructive possession

As you might expect, actual possession is easy to prove. If one of the officers involved in your arrest testifies that (s)he recovered the drugs from your person, such as from your pocket, that proves actual possession – assuming, of course, that the judge or jury finds the officer’s testimony credible.

As FindLaw explains, proving constructive possession, however, presents a difficult dilemma for the prosecutor. Here (s)he must rely on circumstantial evidence to prove you possessed the drugs in question. Only if that evidence is strong enough can the judge or jury make a reasonable inference that you owned them.

Illustrative examples

The concept of constructive possession becomes easier to understand by way of two simple examples. For the first, assume the following facts:

  • You were riding in your car accompanied by one or more passengers.
  • An officer pulled you over for an alleged traffic violation.
  • (S)he subsequently legally searched your car.
  • (S)he found drugs hidden in your locked console, the key to which you gave him or her.

Under this fact situation, the judge or jury can reasonably infer that the drugs belonged to you since you represented the only person with access to your locked console.

In the second example, the same facts apply except – and it represents a huge exception – this time the officer found the drugs hidden in your car’s unlocked console. Under this fact situation, the judge or jury has no way to reasonably infer who the drugs belonged to, you or your passenger(s). Why? Because all of your car’s occupants had equal access to your unlocked console and equal opportunity to place the drugs in it.

Should the facts surrounding your drug arrest more closely resemble example two as opposed to example one, your case likely will never go to trial. Instead, your attorney stands a good chance of convincing the prosecutor to drop the charges against you since (s)he cannot make her burden of proof.

This is educational information and not intended to provide legal advice.

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