When it comes to drug possession or firearm possession charges, there are two ways to possess the item. Possession may be actual or constructive in Florida. For instance, you may be convicted of possession of drug paraphernalia and marijuana in Jacksonville if the State Attorney can prove that you were either in actual or constructive possession of marijuana and paraphernalia. The same is true for Florida possession of a firearm by a convicted felon charges. A defendant can be in either constructive or actual possession of the gun.
Actual possession occurs when the defendant is ”actually” in possession of the illegal item. constructive possession is more difficult for the State Attorney to prove. Actual and constructive possession have been defined as:
“Actual possession means
(a) the thing is in the hand of or on the person, or
(b) the thing is in a container in the hand of or on the person, or
(c) the thing is so close as to be within ready reach and is under the control of the person.
Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control.
Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.
If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing, (2) knowledge that the thing was within the person’s presence, and (3) knowledge of the illicit nature of the thing.” Mitchell v. State, 958 So. 2d 496, 498 (Fla. 4th DCA 2007).
How does constructive possession apply to property that is jointly possessed by two or more people? What about college roommates in Jacksonville FL? What about people that cohabitate? This issue of constructive possession has been addressed by Florida appellate courts. Mitchell v. State is one example of such a case. In this case, the 4th District Court of Appeals stated:
“Because this is a case of constructive possession, there is a crucial distinction between joint possession of the premises and exclusive possession of the premises. If the defendant were in exclusive possession of the premises, the knowledge of the presence of the contraband may be inferred. See, e.g., Murphy v. State, 511 So.2d 397, 399 (Fla. 4th DCA 1987). Mitchell’s theory of defense, however, was that because the premises were in joint possession, his knowledge of the presence of the contraband and his ability to maintain control over it could not be inferred from his possession of the premises….With respect to joint possession of the premises, the law is well-settled. If the premises where contraband is found is in joint, rather than exclusive, possession of a defendant, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof. See Brown v. State, 428 So.2d 250, 252 (Fla.1983). Where joint possession of the premises is shown, the knowledge element may be met by contraband in plain view in the common areas of the premises. Id. However, where the contraband is not in plain view, such knowledge cannot be inferred. In this case, some of the contraband was in plain view, but much of it was not. The mere fact that some contraband was in plain view does not permit the inference that the defendant knew of the entire amount of contraband found upon a search of a residence. See Hill v. State, 873 So.2d 491 (Fla. 1st DCA 2004).” Mitchell, 958 So. 2d. at 499-500.
When it comes to Jacksonville possession of a controlled substance, cocaine, marijuana or any other contraband, the State Attorney must prove the possession. With constructive possession cases, this can be hard to prove. Different facts will lead to different results and different defenses. It is important to discuss everything with your Jacksonville criminal lawyer, so you may build a defense. If you are facing criminal charges in Duval County or the surrounding counties, contact a Jacksonville criminal attorney by calling (904) 564-2525.