“Constructive Possession? But I Swear I Didn’t Know It Was There!!!”

By: Mark Eiglarsh


You've just been arrested and charged with possessing illegal drugs. You're beyond perplexed because you've never touched, or even seen an illegal drug in your entire life. Law enforcement officers allege that the drugs were found in a dresser drawer in the bedroom that is jointly occupied by you and your wife. The transporting officer rejects your claims of innocence stating, "Hey, buddy, you're going down...it's called constructive possession...ask your lawyer about it." Immediately after posting a sizeable bond and leaving jail, your dear friend, the criminal defense attorney, explains everything.

Possession Defined

The law recognizes two types of possession, actual possession and constructive possession. An individual, who knowingly has direct physical control over an item, at a given time, is said to have actual possession of the item. An individual who does not have actual possession, but knowingly has the power and the intention at a given time to exercise dominion or control over the item, is said to be in constructive possession of the item. Mere proximity to a substance is insufficient proof of possession, evidence of the defendant's knowledge and control must be established. Such knowledge and control may be proven by circumstantial evidence, however, such circumstantial evidence must eliminate every reasonable hypothesis except that of guilt, as proof tantamount to mere probability or even strong suspicion is insufficient.

Florida Cases

The Florida Supreme Court as well as the 3rd DCA has made it clear as to what constitutes possession. Specifically, the Courts have addressed numerous cases where evidence was deemed insufficient to establish constructive possession. In one case for example, law enforcement officers discovered Marijuana plants growing on an apartment's balcony where the defendant and two females resided and they were arrested. The Court in that case found the evidence tendered were insufficient to establish constructive possession. In another constructive possession case, a plastic bag containing contraband was found on a night stand between two beds. In spite of the defendant's admission that the contraband was found in his bedroom, the Court nevertheless reversed the conviction. The Court has also addressed this issue where contraband is found in a motor vehicle. In one particular case, the defendant, while driving his sister's car, was stopped by the police as he attempted to flee. Evidence consisted of Cocaine hidden inside a roll of toilet paper in a glove box inside the car was found and presented against the defendant. In spite of him expressing "disappointment" that the drugs were discovered, the defendant was found not to be in constructive possession of the Cocaine seized. Likewise, in another case where the defendant's identification card was found in the cab of a pick–up truck that contained Marijuana. The Court found that mere presence of the defendant's identification card, and evidence that the defendant ran from the police, was insufficient to establish a constructive possession as the defendant was not the registered owner of the truck.


Your attorney is correct in assuring you that the facts that form the basis for your arrest are insufficient as a matter of law. In fact, in a case involving similar facts and circumstances, the Florida Supreme Court reversed the conviction, finding insufficient evidence to constitute constructive possession.

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