Possession in Florida: Actual vs Constructive

October 13, 2020 Don Pumphrey, Jr. Drug Charges Social Share

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

There are many crimes in Florida which require that the person be in possession of an illegal substance or item. These include but are not limited to: possession of drugs, possession of child pornography, and possession of a weapon by a felon. The state must prove beyond a reasonable doubt that a defendant legally possessed the contraband item, a much more complicated concept than it appears at first look. This is due to the distinction between actual and constructive possession.

What is Constructive Possession?

Actual possession is pretty simple, it consists of physically (or digitally) holding the elicit item or file on the person. Constructive possession is a concept designed for circumstances which are a little less clear cut.

In order to prove constructive possession in the state of Florida, the person must have dominion and control of the contraband, knowledge that it was actually within the person’s presence, and knowledge that the item was actually illegal to possess. This frequently manifests itself in cases where there is a search of a vehicle. If the state is able to convince a jury that the above three requirements are met, a case can be sustained for a passenger when contraband is found in a center console between the driver and passenger. Another common type of case for the state to pursue constructive possession is shared storage space. Drugs found in employee lockers or storage areas can sometimes sustain a case for possession when the person is no where near the storage area or even on the property. The complicated nature of proving these cases does allow for defense to rebut charges that are pursued in this way, however.

There are many ways to fight a constructive possession case, but the defenses are highly case specific. It’s important to speak to a qualified criminal defense attorney with experience successfully defending cases like yours.

The first step is to evaluate whether there is a constitutional defense that can be raised. Possession cases by their nature must begin with the police actually finding a contraband item, frequently these searches are performed in violation of fourth amendment protections and the entire case can be dismissed. It’s also possible to challenge the constructive possession itself, it’s a difficult burden for the prosecutor to prove beyond a reasonable doubt that the defendant had actually knowledge both that the contraband was there and also the illegal nature of it. A skilled criminal defense attorney can often tear apart this argument before it gains any traction.

Defense Attorney in Tallahassee, FL

Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience representing individuals accused of possession charges in Tallahassee and throughout the state of Florida. Don Pumphrey and the legal team at Pumphrey Law are ready to fight for the rights of those who have been wrongfully accused and fight for the best possible outcome. Speak to a Tallahassee criminal defense attorney today at (850) 681-7777 or send an online message today to discuss your rights during an open and free consultation with our legal team.

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

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