Definition of Possession

Under Florida law, possession of a controlled substance, such as marijuana, is defined as the ability to exercise the right of ownership, management, or control over contraband. Possession may be “actual” or “constructive” in nature.

Actual Possession

“Actual” possession means that the cannabis is in the hand of the person accused, or is in a container in the hand of a person, or is so close as to be within “ready reach,” and is under the control of the person accused.  Harris v. State, 954 So. 2d 1260, 1262 (Fla. 5th DCA 2007).

Mere proximity to a controlled substance such as cannabis or pot or weed is not sufficient to establish control over the substance when the substance is not in a place over which the person has exclusive control.

  • Sundlin v. State, 27 So. 3d 675, 676-77 (Fla. 2d DCA 2009) (holding evidence insufficient to prove actual possession despite the fact that crack pipe was within defendant’s ready reach on nightstand less than a foot from where defendant was lying on hotel room bed because State presented no evidence linking him to pipe other than his proximity to it, nor did it prove defendant had control over hotel room premises).

Constructive Possession

“Constructive” possession means that the controlled substance is not on the physical person, but is in a place over which the defendant has control, or in which the defendant has concealed it.

In order to prove constructive possession, the prosecution must establish:

  1. the defendant’s dominion or control over the controlled substance, and
  2. the defendant’s knowledge that the controlled substance was within the defendant’s presence.

If a person has exclusive possession of a substance, such as cannabis, knowledge of its presence may be inferred or assumed. Hively v. State, 336 So. 2d 127, 129 (Fla. 4th DCA 1976). However, where more than one person has access to or is near the contraband, knowledge and control must be established by independent proof.  Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013).

In constructive possession cases, proof of “dominion” and “control” requires more than the mere ability of the defendant to reach out and touch an item of contraband. Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007).  Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant actually exercised dominion and control over the drugs.  Id.

Mere proximity to a controlled substance, such as marijuana, is insufficient to establish constructive possession.  Gizaw v. State, 71 So. 3d 214, 217 (Fla. 2d DCA 2011); Torres v. State, 520 So. 2d 78, 80 (Fla. 3d DCA 1988); Cruz v. State, 744 So. 2d 568, 569 (Fla. 2d DCA 1999) (reversing a possession conviction where the State’s evidence merely showed that a crack pipe was found next to the gas pedal of a vehicle driven by defendant with a passenger).

Proving Possession of Cannabis

In Florida, there are three elements required to prove possession of under 20 grams of marijuana:

  1. The defendant possessed a certain substance (actual or constructive);
  2. The substance was cannabis (less than 20 grams); and
  3. The defendant had knowledge of the presence of the substance.

Knowledge that the Substance is Illegal

One of the harshest aspects of Florida’s marijuana possession laws is that, to obtain a conviction, the State is not required to prove that the defendant knew of the illegal or illicit nature of the substance possessed.  Knowledge that a substance was present is sufficient to support a conviction.  State v. Adkins, 96 So. 3d 412, 423 (Fla. 2012).

Rather than making knowledge of illicit nature of the substance an element of the offense that the State must prove at trial, the Florida legislature amended Chapter 893 in 2011 to make knowledge of the illicit nature an affirmative defense.  See § 893.101.

The amendment to Chapter 893 means that, even though a defendant may not have known of the nature of the substance, the burden rests with the defendant to prove this lack of knowledge.  Adkins, 96 So. 3d  at 423.

Joint Possession

Under Florida law, it is possible for two or more persons to be in “joint possession” of a substance, such as cannabis, if the premises where the contraband is found are occupied by multiple persons..

However, to establish “joint possession,” knowledge of the presence of the substance and the defendant’s ability to exercise dominion and control over the substance must be established by independent proof.  Hall v. State, 382 So. 2d 742, 743 (Fla. 2d DCA 1980).  Knowledge and control may not be inferred or based on mere presence or proximity.  Giddens v. State, 443 So. 2d 1087, 1088 (Fla 2d DCA 1984).

Penalties for Possession of Marijuana

The penalties available for a marijuana possession charge will depend on the amount of cannabis at issue. Where a defendant is found in possession of less than 20 grams, the offense is classified as a first degree misdemeanor, with penalties of up to one year in jail or one year probation, and a $1,000 fine.

Other Consequences

A conviction for misdemeanor marijuana possession will result in a one-year driver’s license revocation, in addition to a likely term of probation.

If a probationary sentence is imposed, the defendant will be subjected to intrusive random drug testing and be responsible for paying costs of supervision, court costs, fines, costs of prosecution, and completing all other terms and conditions imposed by the court.

Other penalties for possession of marijuana in Florida include the following:

  • Ineligibility for some government employment;
  • Ineligibility for Bright Futures Scholarships and other forms of State financial aid;
  • Interference with State licensing, permitting, and certifications without completion of an approved drug treatment program;
  • Ineligibility for public housing;
  • Interference with employment prospects and college applications;
  • Damage to reputation.

Defenses to Possession of Marijuana

Cannabis possession is a highly defendable criminal charge, both on legal and factual grounds.

Legal Defenses

The first angle of attack in a marijuana possession case is to challenge the legality of the search, detention, or traffic stop that led to the arrest or Notice to Appear. If appropriate in the case, this is done through the filing of a Motion to Suppress Evidence.

A Motion to Suppress is a legal challenge to the constitutional validity of a law enforcement officer’s actions. Where police act unlawfully, any evidence they derive as the “fruit” of their illegal actions will be excluded from evidence under the Fourth Amendment “exclusionary rule.”

Common issues that can cause the suppression of evidence concerning cannabis in Florida include the following:

Factual Defenses

The second angle of attack in a possession case is to identify factual defenses to challenge the State’s proof or to provide the accused with an affirmative defense. Common factual defenses include the following:

  • Can the State prove that the defendant had knowledge of the cannabis or marijuana?
  • In constructive possession cases, did the defendant have dominion and control, or did some other person exercise dominion or control?
  • In constructive possession cases, did the accused have knowledge of the illicit nature of the cannabis (i.e. that the substance was in fact contraband)?
  • Did the accused possess the cannabis for purposes of a lawful temporary disposition?
  • Was the accused in exclusive possession of the premises or vehicle?
  • Is there a proper chain of custody for purposes of introducing the seized marijuana or pot into evidence?
  • Does the State’s case rely in whole or in part on testimonial hearsay under Crawford?
  • Was the accused entrapped?
  • As a whole, is there sufficient evidence to prosecute the case?

Pretrial Intervention Programs for Misdemeanor Marijuana Cases (Under 20 Grams)

Even where no viable defenses exist to a possession of marijuana charge, it is often possible to obtain an eventual dismissal of the charges by negotiating to enroll a defendant in a misdemeanor or felony Pretrial Intervention Program.

These programs call for a defendant to complete specified requirements within a set time period pursuant to an agreement between the State Attorney’s Office and the accused. If completed successfully, the State Attorney’s Office will drop the charges and the case is dismissed.

Contact an Attorney

If you have been accused of cannabis possession in Jacksonville or Orlando, Florida, you may have defenses available to contest the charge or to minimize potential penalties. Contact the attorneys at Hussein & Webber, PL for a free consultation.