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Actual vs. constructive possession of drugs in Florida

On Behalf of | Apr 12, 2024 | Drug Charges

In the Sunshine State, drug possession charges can result in serious consequences, including hefty fines and jail time. However, the legal definition of “possession” can be a bit murky.

If you have been accused of possession, did you have the drugs directly on you, or were they simply somewhere you might have access to them? Understanding the difference between actual and constructive possession can impact the ways in which you strategize to pursue a favorable outcome to your case.

Actual possession: When the drugs are on you (or very close)

Actual possession is the most straightforward scenario. It occurs when law enforcement finds illegal drugs on your person or within easy reach. This includes:

  • Drugs in your pocket, purse or backpack.
  • Drugs found during a pat-down or frisk.
  • Drugs in the car’s center console or passenger compartment if you’re the driver (reach can be a deciding factor).

In these cases, the prosecution has a relatively easy time proving you had control over the drugs.

Constructive possession: The “knowledge and control” test

Constructive possession is trickier. Here, the drugs aren’t necessarily found directly on you, but the state argues you knew about them and had the ability to control them. The prosecution must typically prove two things to convict you:

  • Knowledge: You knew that the illegal drugs were present.
  • Dominion and control: You had the power to access and control the drugs.

This often hinges on the location of the drugs. Drugs found in a hidden compartment of your car you rarely use might be harder to pin on you than drugs in your nightstand drawer.

The number of people present also matters. If you’re one of several passengers in a car where drugs are found, proving you specifically knew about and controlled them becomes more challenging. Furthermore, ownership of the location plays a crucial role. Drugs found in a common area of a shared apartment raise questions about individual knowledge and control.

It’s crucial to remember that mere presence isn’t enough; just being near someone with drugs doesn’t automatically mean you’re in constructive possession. Additionally, if multiple people have equal access to the drugs (like drugs found in a communal living space), constructive possession charges might be difficult for the prosecution.

The key difference between actual and constructive possession boils down to whether you had drugs physically on you or readily available, along with the knowledge they were there. If you face possession charges, an experienced defense team can work weaken the prosecution’s case. This might involve arguing you lacked knowledge of the drugs, didn’t have control over them or that the search that uncovered them was illegal.