If You Have Been Charged with a Criminal Offense in Florida Wherein Constructive Possession is an Element of

the Case You Should Have a General Understanding of the DifferenceBetween Constructive and Actual Possession

CONSTRUCTIVEPOSSESSION IN

CRIMINAL PROSECUTIONS

AMANDA POWERS SELLERS AND JENNA C. FINKELSTEIN

Many criminal offenses in the State of Florida involve the illegal possession

of contraband. The contraband in question could be drugs, stolen property,

or even a firearm if the accused is not allowed to own or carry one. To

convict the defendant of one of these offenses the State of Florida must

prove that the defendant was in possession of the item in question. Sounds

simple enough doesn’t it? In reality, however, it can be complicated

because possession can be actual or constructive. Actual possession of an

item is typically easy enough for the prosecution to prove; however,

construction possession can be difficult to prove. If you have been charged

with a criminal offense in Florida wherein constructive possession is an

element of the case you should have a general understanding of the

difference between constructive and actual possession.

ELEMENTS OF A CRIME – POSSESSION

Every criminal offense can be broken down into elements of the crime.

Each of these individual elements must be proven in order for the State of

Florida to secure a conviction. Some criminal offenses include a

“possession” element. For example, Florida Statute 893.13(1)(a) reads:

“Except as authorized by this chapter and chapter 499, it is unlawful

for any person to sell, manufacture, or deliver, or possess with

intent to sell, manufacture, or deliver, a controlled substance.”

(emphasis added)

Likewise, Florida Statute 790.23(1) reads:

“It is unlawful for any person to own or to have in his or her care,

custody, possession, or control any firearm, ammunition, or electric

weapon or device, or to carry a concealed weapon, including a tear

gas gun or chemical weapon or device, if that person has been…”

(emphasis added)

In both of these statutes the defendant faces serious penalties if convicted

of the underlying crime. To convict the defendant, however, the state must

prove that the defendant was in “possession” of the drugs or firearm.

ACTUAL POSSESSION DEFINED

Ideally, from a law enforcement/prosecutorial perspective, a suspect will be

found in “actual possession” of the item of contraband. Actual possession

means that the person has immediate and direct physical control over the

item in question. If the police stop

you while you are walking down

the street and conduct a “pat

down” search whereupon the

officer finds a bag of cocaine in

your pocket or a firearm for which

you have no permit, that would

constitute “actual possession”.

(Whether or not the officer had

the legal right to conduct the

search is another question not discussed here.)

CONSTRUCTIVE POSSESSION DEFINED

Within the law there are numerous concepts that have defied the perfect

definition. Constructive possession is one of those terms. The concept of

constructive possession developed over the years as an answer to

situations where a defendant did not conveniently have an item of

contraband on his person yet the police believed the item belonged to the

defendant. All too often law enforcement officers are faced with a situation

where they believe they know something belongs to a suspect yet the

item was found near the suspect, not on the suspect. To address these

situations the concept of constructive possession was created. A precise

and universal definition of constructive possession, however, remains

elusive. The U.S. Supreme Court has even said that "there is no word more

ambiguous in its meaning than possession" (National Safe Deposit Co. v.

Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). A generally

accepted definition though requires that the defendant had knowledge of

the item in question and that he/she had the intent to maintain dominion

and control over the item.

PROVING CONSTRUCTIVE POSSESSION

Proving constructive possession can be just as hard as defining it,

depending on the circumstances. Over the years, numerous courts have

tried to decide when the element of possession has been proven by

constructive possession. For example:

“[P]ossession may be imputed when the contraband is found in a

place which is immediately and exclusively accessible to the accused

and subject to his dominion and control, or to the joint dominion and

control of the accused and another. (People v. Williams (1971) 5

Cal.3d 211, 215.) “Constructive possession occurs when the accused

maintains control or a right to control the contraband.” (Ibid.) “The

elements of unlawful possession may be established by circumstantial

evidence and any reasonable inferences drawn from such evidence.”

(Ibid.) However, “proof of opportunity of access to a place where

narcotics are found, without more, will not support a finding of

unlawful possession.” (People v. Redrick (1961) 55 Cal.2d 282, 285.)

In order to better understand how difficult it can be to decide when

constructive possession has been proven, consider the following examples:

1. You are driving down the street, alone, in a vehicle you own when

the police pull you over. Upon conducting a search of the vehicle the

police find a baggie of cocaine under the driver’s seat.

2. You are driving down the street with three passengers in the vehicle

that you own when the police pull you over. A search turns up a

baggie of cocaine under the driver’s seat. One of the passengers was

sitting directly behind you in the vehicle.

3. You are driving down the street in a vehicle you borrowed from a

friend. No passengers in the vehicle. The police stop you and search

the vehicle and find a baggie of cocaine under the driver’s seat.

4. You are a passenger in the front seat of a vehicle that is not yours.

The police stop you and find a baggie under the driver’s seat.

Most people would agree that a good argument can be made that the

cocaine really did belong to you under the first scenario; however, is it

clear beyond a reasonable doubt that you possessed the cocaine under

the other three scenarios? Using the widely accepted definition of

constructive possession -- knowledge of the item in question and that you

had the intent to maintain dominion and control over the item – the

prosecution would have to prove

that you had knowledge that the

baggie of cocaine was under the

seat and that you had the intent

to maintain dominion and control

over it. The presence of other

people in the vehicle in scenarios

two and four sheds doubt, as

does the fact that the vehicle is

not yours in scenarios three and four. As you can see, constructive

possession can be difficult to define and prove.

If you have been charged with a criminal offense in Florida that includes

constructive possession as an element of the crime, consult with an

experienced Florida criminal defense attorney as soon as possible. Often,

the fact that the State of Florida is forced to prove constructive possession

offers you an excellent defense to the offense; however, only an

experienced criminal defense attorney can review the unique facts and

circumstances of your case and provide you with specific advice.

Cornell University Law School, Constructive Possession

Florida Statutes, 893.13

Florida Statutes, 790.23

Virginia Law Review, Constructive Possession in Narcotics Cases, To Have

and Have Not

ABOUT THE AUTHORS

Amanda Powers Sellers

Florida criminal defense lawyer, Amanda Powers Sellers,

has aggressively defended thousands of Florida criminal

cases. With over nine years of criminal jury trial

experience, she has the necessary background to represent

cases ranging from Driving under the Influence (DUI) to

First Degree Murder.

Amanda is a seasoned litigator and an aggressive negotiator. With a wealth

of experience she has proven that her gentle, but aggressive style of criminal

defense litigation consistently achieves results for her clients.

Jenna C. Finkelstein

Florida criminal defense attorney, Jenna Finkelstein, has

over sixty (60) criminal jury trials to her credit. Her

experience defending individuals charged with crimes in

the state of Florida ranges from domestic battery to DUI

Manslaughter, Sexual Battery, First Degree Murder and all

crimes in between.

She is passionate about the law and promises personal attention to all of her

clients and their individual needs. Jenna is a seasoned trial attorney who

knows the legal system and its players. Jenna and her team at the Law Offices

of Powers Sellers & Finkelstein, PLC, are committed to fighting for you.

Powers Sellers & Finkelstein, PLC 6344 Roosevelt Blvd. Suite B

Clearwater, FL 33760 727-531-2926

http://psffirm.com