Possession Charges: What are they? How does the State prove them? How can I win?

The purpose of this Legal Guide is to assist you in understanding “possession”, and various issues surrounding possession, in FL. It is only intended to provide “standards” and raise basic awareness. Always remember that each case is unique and requires its own independent analysis by a lawyer.

1. What is possession?

   “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”.

2. Are there different types of possession?

   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.

3. Unique challenges in constructive possession cases:

   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.

4. Complication in joint possession / multiple Defendant possession cases:

   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.

5. What are some things that are unlawful to possess:

   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).

6. Possession of Firearms in FL:

   In the case of firearms the State must prove that you were aware of the presence of the firearm and that you had the ability to exercise control over it. Proof of ownership is not required; merely possession. And, in FL, “firearm” is very broadly defined to include “any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive”. While “antique firearms” are excepted the statute considers mere “parts” of a gun (the frame, receiver, muffler, silencer, etc) to be a firearm for purposes of possession. If you are a convicted felon you cannot possess a firearm, and there are certain firearms which are unlawful for anyone to possess in Florida.

7. Possession of Stolen Property in FL:

   Dealing in, or “fencing”, stolen property has a possession element. Proof of possession of recently stolen property, “unless satisfactorily explained”, creates an inference (a rebuttable presumption) that the possessor knew or should have known that property was stolen. So, if you are in possession of a car which has a broken or bypassed ignition then there will be an inference (a rebuttable presumption) that you knew that it was stolen; or if you are in possession of property which has someone else’s name or contact information “conspicuously displayed” on it then there will be an inference (a rebuttable presumption) that you knew it was stolen. You are of course free to offer evidence that you did not know and try to overcome the presumption.

8. Possession of Child pornography in FL (and federally):

   In FL “child pornography” means “any image depicting a minor engaged in sexual conduct”, and it is unlawful for anyone to knowingly possess any photograph, movie or any representation, in whole or in part, of any person under 18 involved in any sexual conduct. The definition of “sexual conduct” is very wide but does not include breast feeding by a child’s mother. Federal law defines “child pornography” as “any visual depiction of sexually explicit conduct involving someone under the age of 18”. The definitions under the Federal Code (Title 18 Sec 2256) are very broad indeed and, federally, the legal definition of “sexual explicit conduct” does not require an image depicting a child engaged in sexual activity. Possession of an image of a naked child with nothing more can constitute illegal child pornography if it is sufficiently sexually suggestive.

9. Possession of Burglary Tools in FL:

   To be convicted of Possession of Burglary Tools the State must prove that: 1) You intended to commit a burglary; 2) You had in your possession a tool, machine or implement to you intended to use in the commission of a burglary or a trespass; and 3) You did some overt act toward commission of the burglary or trespass. Even common household items can be considered burglary tools IF the State can prove your intent, and intent CAN be inferred from the circumstances. For example, if you are observed at the back door of a home or business directing your attention at a door handle, are then seen existing the same location at a run and are caught with a screwdriver in your possession, well then that’s probably enough. If you are walking down the street, are detained and found to be in possession of the same screwdriver, WITH NOTHING MORE, then that’s probably not enough to be arrested for possession of burglary tools.

10. Possession of various forms of contraband by a minor in FL:

    There are items which are lawfully possessed by adults but which are unlawfully possessed by a minor simply based upon age. Examples include alcohol, tobacco, firearms. In the case of alcohol, per F.S. 562.111 makes it is a misdemeanor for anyone under 21 to possess alcohol unless it is during the “course and scope of a legitimate business”. In the case of tobacco, FS 579.11 makes it a non-criminal infraction for anyone under 18 to possess tobacco (a 3rd violation within a 12 week period results in a driver license suspension). In the case of firearms, FS 790.22 makes it a misdemeanor for someone under 18 to possess a firearm (unless they are 16 or older and either lawfully hunting or engaged in a lawful marksmanship competition, and in either case the 16+ y/o must be accompanied by an adult – as an aside it is also a felony for a parent or guardian to “knowingly and willfully” permit a minor to possess a firearm).

11. Introduction of Contraband into a Detention Facility in FL:

    When you are arrested and taken to a jail, or if you are visiting someone in a detention facility, you cannot introduce any form of contraband into the facility. This includes having it on your person, knowingly possessing, giving it to an inmate, receiving it from an inmate, attempting to take from or send to an inmate or otherwise failing to go through “proper channels” to bring whatever it is into the facility. This is not necessarily limited to items one would traditionally consider contraband”. Instead, and in this context, “contraband” can include money, food, clothes, written or recorded communications, intoxicants, drugs of any variety (OTC, Rx or otherwise), weapons of any variety – or anything that can be used as a weapon, and anything which can be used as an aid to an inmate’s escape or attempt to escape. If you are in possession of any of these things in any detention facility then you face felony prosecution.

12. Possession of Narcotics in FL, Generally:

    FS Chapter 893 deals with narcotics in FL. It contains exhaustive and detailed lists of substances, prohibited acts and penalties. Essentially, Florida both regulates and criminalizes possession, possession with intent to distribute, sale, manufacture, delivery and trafficking in a very wide variety narcotic and pharmacological (a/k/a “controlled” / “scheduled” substances). Florida divides drugs into categories, called schedules, and penalties vary as to each. Schedule I drugs have a high (no pun intended) potential for abuse and no accepted medical use (heroin is an example); Schedule II is the same as Schedule I but there is an accepted medical use (morphine, percocet, etc are examples); Schedule III – V have decreasingly lesser potential for abuse than either Schedule I or II and an accepted medical use ( LSD and anabolic steroids are examples of Schedule III, xanax and valium are examples of Schedule IV substances). Interestingly, marijuana is a Schedule I substance while cocaine is a Schedule 2 substance).

13. Possession of Narcotics in FL, Differences:

    The nature, weight and logistics of the controlled substance will determine the charge that you face. Let’s take marijuana for example: Possession of a trace amount up to 19.99999999 grams is a 1st degree misdemeanor. Possession of 20+ grams is a 3rd degree felony. Possession with intent to sell is a 2nd degree felony. Possession of either 25+ lbs or 300 plants is referred to as “trafficking” and is a 1st degree felony. Further, possession of either 25-1,999.9999 lbs or 300-2,000 plants is trafficking with a 3 year minimum mandatory; 2,000-9,999.9999 lbs or 2,000-9,999 plants is trafficking with a 7 year minimum mandatory; and 10,000+ lbs or 10,000+ plants is trafficking with a 15 year minimum mandatory.

14. Possession vs. Trafficking in FL:

    Trafficking is essentially “super possession”; it does not require anything further than merely being in possession of more than a certain amount of a given controlled substance. While most possession cases are 3rd degree felonies (some, not many, are misdemeanors), all trafficking charges are 1st degree felonies (punishable by up to 30 years in prison) and all carry varying minimum mandatory terms of imprisonment. Not all controlled substances are subject to trafficking charges (that is to say that some substances, not matter how much weight you may possess, can result in no more than a “simple” possession charge). Among the substances subject to trafficking are: Cannabis, Cocaine, Opiates, Phencyclidine, Methaqualone, Amphetamines, Flunitrazepam, GHB, GBL, Butanediol, MDMA and LSD (please see FS 893.135). There are many controlled substances for which you cannot be charged with trafficking in FL (for example, psicilicibin – “magic mushrooms”).

15. Various Rx / prescription medications issues in FL:

    Two (2) common issues with prescription (Rx) medications are possession of Rx meds without an Rx and “doctor shopping”. In the first case, FS 499.03 makes it unlawful for anyone to possess an Rx drug without having a legitimate and otherwise valid Rx for that drug in their own name and right. This can be charged above, beyond and in addition to a charge of possession of a controlled substance and is usually a separate misdemeanor offense. In the latter case, FS 893.12(7)(a)8 makes it unlawful for a person to go to multiple doctors (or medical facilities) in an effort to secure multiple Rxs for similar meds in any given 30 day period. So called “doctor shopping” is a 3rd degree felony.

16. Examples of actual, constructive and Joint possession – Part I – the set-up:

    Lets take the example of Mary Jane Sensi and Tony Montana, who are driving up I-95 northbound in a car being driven by MJ and which is registered to MJ’s cousin Itt when they get pulled over by Sgt. Stedenko for speeding. When the officer approaches the car he is immediately overcome by a powerful scent of marijuana. He observes Mary to have bloodshot eyes and to be “giggly”. When she opens the glove box to retrieve the vehicle registration a baggie containing a white powdery substance falls to the passenger seat floorboard. Both occupants are ordered out of the vehicle. Sgt. Stedenko ultimately arrests MJ for DUI, both MJ and Tony for possession and then recovers a Mac-10 automatic pistol in Tony’s waistband. (Tony is a convicted felon.) When the vehicle is impounded it is inventory searched and the cops find marijuana “roaches” in the ashtray and a computer containing child porn in a backpack in the trunk (the backpack contains some of Cousin Itt’s property inside). Who gets arrested and for what?

17. Examples of actual, constructive and Joint possession – Part II – What was where?

    In our hypothetical we have four (4) items of contraband: 1) The roaches in the ashtray; 2) The cocaine which fell from the glove box onto the passenger’s floor board; 3) The MAC-10 (an illegal automatic firearm which, in the case, was in the actual possession of a convicted felon) and 4) a computer full of child porn images in a backpack in the trunk. The only clear cut instance of actual possession is Tony with his firearm (it was in his waistband and on his person). The rest of the items of contraband – the marijuana roaches in the ashtray, the cocaine on the floorboard and the computer in the backpack in the trunk – are on no one’s person and are therefore, arguably, either possessed or not possessed by either or both MJ and / or Tony. In this case the issue will boil down to knowledge and control, after an analysis of the totality of the facts and circumstances.

18. Examples of actual, constructive and Joint possession – Part III – The roaches:

    The “roaches” were found in the ashtray of the car. For our purposes the ashtray is located dead center in the console, equidistant between MJ & Tony. The car is registered to MJ’s cousin Itt, she was driving and Tony was the passenger. Who, if either, was in possession of the roaches? As the roaches were close enough to each of them as to be under either’s dominion and control, Sgt. Stedenko could charge them both with joint possession, actual or constructive. But we have to look further, to the facts ands circumstances, to see what makes sense and to determine who knew what. Sgt. Stedenko has reason to believe that MJ was smoking, but no reasonable suspicion that Tony was. Further, while she doesn’t own it, MJ was driving the car and Tony was a passenger. Mere proximity is not enough to properly charge Tony with possession of the roaches, but the combination of MJ’s marijuana impairment and the roaches being located within her reach in her car’s ashtray is enough to charge her with possession.

19. Examples of actual, constructive and Joint possession – Part IV- The cocaine:

    In our hypothetical the cocaine was found when MJ reached over the console to open the glove box. It fell out in Sgt. Stedenko’s plain view onto the floor board by Tony’s feet. Again, Sgt. Stedenko could charge them both with joint possession as the cocaine were close enough to each of them as to be under either’s dominion and control. But we have to look further, to the facts ands circumstances, to see what makes sense and to determine who knew what (remembering, again, that mere proximity to the cocaine is not enough). Neither MJ nor Tony own the car. It is entirely possible that the cocaine belongs to Cousin Itt and neither MJ nor Tony knew of its existence until it popped out of the glove box. My guess is that Sgt. Stedenko charges them both and lets the State or the Court sort out the knowledge component (which will be dispositive).

20. Examples of actual, constructive and Joint possession – Part V – The computer:

    The computer presents a host of problems. First, not only is it in the trunk, but it is in a container in the trunk. Traditionally, not withstanding the legal impoundment and inventorying of the car, a search warrant would be required to open any closed containers (such as the backpack) inside of the vehicle. Regardless, once the backpack was opened the computer would have to be opened, powered-up and searched, again all actions which traditionally require a warrant. The facts that the car is registered to Cousin Itt, that the backpack was locked in the trunk, that none of MJ’s or Tony’s property was found in the backpack with the computer and that Cousin Itt’s property was mitigates against either MJ or Tony having knowledge of the existence of the child porn. While the same cannot be said for Cousin Itt, the 4th Amendment may be his saving grace.

21. Examples of actual, constructive and Joint possession – Part VI – Potential defenses and likely outcomes:

    In our hypothetical MJ and Tony can jointly deny everything, admit everything, admit some things, point the finger at one another, blame Cousin Itt for everything or exercise their 5th Amendment right to remain silent and say nothing. In a best case scenario: MJ is going to charged and prosecuted for DUI and possession of marijuana, Tony is going to be charged with nothing and Cousin Itt is going to charged with possession of Child porn (and beat it on an unlawful search an seizure). More likely is that both MJ & Tony are going to be charged with possession of cocaine as well (because, in the real world, your right to be presumed innocent until proven guilty does not apply on the roadside, only kicks in once you get to court and 999/1,000 cops are charging someone with possession of that baggie of cocaine).

22. If I am caught in possession of anything illegal in FL am I done for?

    Not necessarily. First, every criminal case is different. Each is a fluid matter which is subject to its own unique set of facts, circumstances and practical variables, and it is entirely possible that your case may be attacked and beat on either the facts or the law. Second, Florida law provides several mechanisms for resolving possession charges. Among these are pre-trial diversion and drug court, but in this event both your eligibility and completion are dependent upon you, not your lawyer. Finally, never, ever, underestimate the power of creative lawyering. A skilled and experienced criminal defense lawyer can oftentimes find original and prolific ways to sidestep a criminal prosecution.

23. Common defense issues in possession cases in FL:

    Following are some common themes which are used as defenses in possession cases. 1) “Mere proximity” (being close) to a thing does not establish possession. The State must prove that the person also had dominion and control over the item in question. 2) “Temporary” possession does not meet the “dominion and control” requirement so, where you “merely take possession of contraband in the presence of its owner for the sole purpose of verification or testing, you are not in possession. 3) “Knowledge” is required for the State to prove possession. In the case of “actual” possession (where the item is found on your person) the State is entitled to an inference (a rebuttable presumption) of knowledge; but in the case of “constructive” possession (where you do not have exclusive possession of an item) then knowledge cannot be inferred or presumed. 4) In possession cases, while the State does not need to prove that you had knowledge of the illicit nature of the thing you can always claim your “lack of knowledge of the illicit nature of the item in question” as an affirmative defense to the charge.

24. Search and Seizure Issues in possession cases:

    Nowhere other than drug cases is the 4th Amendment (which protects folks from unreasonable searches and seizures) more prolific and involved, but almost all possession cases involve, to some degree or another, the 4th Amendment. In any case involving a search and seizure the “totality of the circumstances” must be carefully scrutinized and analyzed to determine whether or not a violation has occurred. Where an allegation of unlawful police conduct is made the burden shifts to the State to prove the lawfulness of the police action. If law enforcement exceeded the scope of their authority in conducting a search, or if they coerce someone into “consenting”, then the evidence is subject to being suppressed (tossed-out) – this is referred to as “the fruit of the poisonous tree doctrine”.

25. Possession cases in FL: The end game:

    You may or may enjoy viable defenses to your charges, affirmative or otherwise, or there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges in your unique case, and it is to the facts and circumstances of both you and your case that we must look to make that determination. Accordingly, the best way for you to get competent advise is always going to be for you to find a local and experienced criminal defense lawyer, make an appointment, show up on time, bring whatever evidence, documents or witnesses that you may have, engage in a meaningful face-to-face consultation and get yourself some advise which is legally sound and has been custom tailored as possible to meet your specific reasonable needs in your unique case. I hope that this has been helpful.