Constructive v. Actual Possession of Drugs – What’s the Difference?

June 24, 2021 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

This is Part 2 of a 2-Part Blog series. Read Part 1 here. 

Florida is known for its tough stance on drug crime. If arrested for possession, distributing, or trafficking drugs in the state, the accused may face harsh penalties like substantial fines and lengthy prison sentences. What might come as a surprise is that an individual can face these harsh penalties even if they were not the one holding or possessing the drugs at the time of law enforcement intervention. This is because Florida’s drug statutes require actual or constructive possession of the illegal contraband.[1]

Possession Generally

Under Florida Law, to possess means to have personal charge or exercise of the right of ownership, management, or control over the item.[2] As expressed above, possession may be actual or constructive.[3]

Constructive Possession

Constructive possession can be proven in situations where the accused knows of the presence of contraband and can maintain dominion and control over it.[4] In order for the State to prove an accused was in constructive possession of contraband, all three of these elements must be shown: (1) the defendant had dominion and control over the contraband, (2) the accused had the knowledge that the contraband was in his or her presence, and (3) the accused had knowledge of the illicit nature of the contraband.[5] If the accused was the individual in exclusive possession of the premises where such contraband is found, their knowledge of the presence of contraband and their power and intent to control the contraband will be inferred.[6] However, things get tricky when contraband is found in an area under joint possession. There, the State must establish by independent proof that the accused had the knowledge and ability to maintain dominion and control of the contraband.[7] This independent proof can be evidence that establishes that the accused had actual knowledge of the presence of the contraband in the place where it was found or circumstantial evidence from which a jury could properly infer that the accused had knowledge of the presence of contraband.[8] If the accused is merely a visitor in a jointly possessed premises, then the State must establish that the accused had control of the contraband in plain view by independent evidence.[9]

Actual Possession

Actual possession is more straightforward. It exists where a defendant has physical possession of contraband and knowledge of such possession.[10] In order for the State to prove that the accused was in actual possession of contraband, the state must establish one of three things: (1) the contraband was in the hands of the accused or on their person, (2) the contraband was in a container in the hands of the accused or on their person, or (3) the contraband was within the “ready reach” of the accused and the contraband was under the control of the accused.[11]

However, under the “ready reach” theory, the State must also prove that the contraband was under the accused’s actual control.[12] The State is permitted to present circumstantial evidence of actual possession if it is enough to allow the jury to infer the accused’s knowledge of the contraband and prove actual possession.[13]

How We Can Help

As stated above, drug charges can carry severe penalties. To avoid those penalties, a lawyer well-versed and experienced in battling drug charges must intervene. If you or a loved one has been accused of a drug crime, contact a Tallahassee criminal defense lawyer as soon as possible to discuss your options and ensure you are afforded the best defense possible. Don Pumphrey and the members of the legal team at Pumphrey Law Firm are educated and experienced in Florida’s drug laws and know how to zealously defend such charges. Call a defense attorney today at (850) 681-7777 or send an online message to discuss your options during an open and free consultation with an attorney in our legal team.

This is Part 2 of a 2-Part Blog series. Read Part 1 here. 

This Article was Written by Gabi D’Esposito

[1] See § 893.13, Fla. Stat.

[2] State v. Williamson, 813 So.2d 61, 64 (Fla. 2002).

[3] Evans v. State, 32 So.3d 188, 189 (Fla. 1^st Dist. App. 2010).

[4] Id.

[5] Robinson v. State, 936 So.2d 1164, 1166 (Fla. 1^st Dist. App. 2006).

[6] Smith v. State, 125 So.3d 359, 261 (Fla. 1^st Dist. App. 2013).

[7] Evans, 32 So.3d at 190.

[8] Id.

[9] Wade v. State, 558 So.2d 107. 108 (Fla. 1^st Dist. App. 1990).

[10] Gartrell v. State, 626 So.2d 1364 (Fla. 1993).

[11] Sundin v. State, 27 So.3d 675, 676 (Fla. 2d Dist. App. 2009).

[12] Id. at 686-77.

[13] State v. Medlin, 273 So.2d 391, 396 (Fla. 1973).

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