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 because State relied solely on proximity to a crack pipe and presented no proof that defendant exercised 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 cannabis, knowledge of its presence may be inferred or assumed. Hively v. State, 336 So. 2d 127, 129 (Fla. 4th DCA 1976). Where multiple persons are present, 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, the State must show that the accused actually exercised dominion or control of the substance.  Mere proof of proximity or ability to touch is insufficient.

Proving Possession

In Florida, there are three elements required to prove possession of cannabis:

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

Knowledge of Illegal Substance

In possession cases, 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.  State v. Adkins, 96 So. 3d 412, 423 (Fla. 2012).

However, lack of knowledge of the illicit nature of the substance may be raised as affirmative defense, where the defendant has the burden of proof.

Joint Possession

Under Florida law, it is possible for two or more persons to be in “joint possession” where the contraband is located in a place where multiple individuals are present.

However, the State must present independent proof  of knowledge and control for each person present.  These elements can not be inferred from mere presence with other persons.

  • See 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).


Possession of Cannabis (Under 20 Grams) is a first degree misdemeanor, with penalties of up to one year in jail or one year probation, and a $1,000 fine.

License Consequences

A conviction for misdemeanor marijuana can carry serious driver’s license consequences.

Under § 322.055, Fla. Stat., a court is required to suspend a person’s driver’s license for a minimum period of 6 months or until the person completes a drug evaluation and drug treatment program.

The court may also direct the Department of Motor Vehicles to issue a restricted license for business or employment purposes only.

Probation Consequences

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

  • 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;


Cannabis possession can be a defendable charge, depending on the legality of police actions and the facts of the case.

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.  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 defenses are not viable, it is often possible to obtain a dismissal of possession charges by negotiating a defendant’s admission into a Pretrial Intervention Program.

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

Contact an Attorney

If you have been accused of cannabis possession in Jacksonville or the surrounding counties, contact Hussein & Webber, PL for a free consultation.