Michael A. Haber, P.A. Miami Criminal Lawyer
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“Possession” means “having holding or exercising power or control over some item”. It differs from mere “custody” in that it not only requires custody but also “dominion and control”. In FL “possession” is defined as “having personal charge of or exercising the right of ownership, management or control overt the thing possessed”.
In FL there are 3 different forms of possession: Actual, Constructive and Joint. “Actual” possession means that a) the thing is in your hand or on your person, b) the thing is in a container in your hand or on your person or c) the thing is so close as to be within ready reach and is under your control. Mere proximity to a thing is insufficient to establish actual possession. “Constructive” possession, means that the thing is in a place over which you have control, or where you have hidden it. In order to prove constructive possession the State must prove that a) you had control over the thing and b) that you knew that the thing was there. “Joint” possession (not be confused with possession of a joint) is where 2 or more people exercise control over the same article. In the case of “joint” possession each of the persons is considered to be in possession of the same article and all can be charged and prosecuted.
In constructive possession cases the State must prove that you had both knowledge of the presence of and dominion and control over the item in question. So, for example, if you are a passenger in a car where drugs are found the State would have to be able to prove that you both knew that the drugs were there and could have possessed them if you wished. Whether or not the State can prove that you had knowledge is almost always going to be the key in a constructive possession case.
In joint possession cases more than one person is charged with possession of the same item. It is also not uncommon for more than one person to be charged with a possession related offense (for example, buyers and sellers can both be charged in a drug case). When these situations occur there is always the potential for a conflict of interest between the “co-defendants”. It is possible that they are all of the same mind and on the same page (i.e. sharing a common defense) but it is also possible that they are not (i.e. one turns / flips / rats on another, usually to secure a better end result for oneself). While it is always best for each person to be represented by independent counsel there are times where one lawyer can ethically represent more than one co-defendant. Just bear in mind that the safer, more prudent route, is for each Defendant to have her / his own lawyer. If the lawyers work in conjunction with one another on a common defense, then wonderful; but if a conflict arises, then with individual lawyers everyone is protected.
There are many things that are either unlawful to possess under any circumstances (like controlled substances / narcotics, child pornography or certain weapons) and then there are things that may be lawfully possessed, just not by certain folks (like minor’s with alcohol or tobacco or convicted felons with firearms). I will tell you a little about some of the more common possession cases below and then will get into a hypothetical analysis to give you a more practical idea and understanding).
At Michael A. Haber, PA “it’s all about reasonable doubt”!
Please note that no attorney-client relationship with either Michael A. Haber, PA or Michael A. Haber, Esq. exists as a result of your watching this webisode series. Further any and all information which is both contained in and may be construed from this webisode series is generic in nature and should only be considered as informational and not as actual legal advise in any specific case. Should you wish to seek actual legal advise then please feel free to contact Michael A. Haber, Esq. as follows:
Office Phone: 305-381-8686
Toll Free Phone: 1-888-SHARK-8-1
Cellular Phone / Text: 305-798-2220
E-Mail: [email protected] / [email protected]
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