Charged With Possession of Drug Paraphernalia in Florida? This Major Case Could Help You

December 4, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 2nd District Court of Appeal ruled that the presence of a “smoking” crack pipe located on the floorboard beneath the driver’s seat, was insufficient to establish the driver’s constructive possession of the pipe.

In Florida, possession of drug paraphernalia is a serious crime (Fla. Stat. 893.147). Under Florida law, this is typically considered a first-degree misdemeanor (up to 1 year in jail and a $1,000 fine). 

Evidence a defendant manufactured or delivered paraphernalia may result in third-degree felony charges (up to 5 years in prison and a $5,000 fine). For more on this, click here.

If someone is charged with possession of drug paraphernalia, the State must prove beyond a reasonable doubt that the item is paraphernalia, and that a defendant actually or constructively possessed it (Fla. Stat. 893.147). 

Actual possession occurs when someone has the alleged drug paraphernalia in their hands, on their person, or it is in plain view within arm’s reach of the defendant at the time it is found. Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017). 

If none of these are true, and the paraphernalia is discovered on “jointly occupied premises” (e.g. in a vehicle/home with more than one person), the State may proceed on a theory of constructive possession. The State must provide independent evidence beyond a reasonable doubt of all of the following for someone to be found guilty (T.W. v. State, 666 So.2d 1001 (Fla. 5th DCA 1996)):

• The defendant had “dominion and control” over the contraband (paraphernalia)
• The defendant had personal knowledge that the contraband was in their presence
• The defendant knew the illicit (illegal) nature of the contraband 

Critically, this cannot be “inferred” by the State. Actual evidence of every element necessary to prove constructive possession must exist. This can be gathered through (Thomas v. State, 269 So. 3d 684 (Fla. 2d DCA 2019)):

• Incriminating statements made by the accused
• Witness statements attributing the paraphernalia to the defendant
• Scientific evidence (e.g. fingerprints) 

Even when it may seem “logical” that drug paraphernalia may belong to the defendant, the State is often “out of luck” if nobody makes incriminating statements (e.g. says who the paraphernalia belongs to) and the paraphernalia is discovered on jointly occupied premises. Exercising the right to remain silent can be critical in influencing the direction of such cases.

In some cases, law enforcement may be firmly convinced upon finding drug paraphernalia that it belonged to the defendant, even if it was not technically in their physical (actual) possession at the time they were arrested. This is especially true if recently-used paraphernalia is found in a home or a vehicle near where the defendant was located.

But does this automatically mean that the defendant is guilty of violating Fla. Stat. 893.147 on a theory of “constructive possession”? The answer, under Florida law, is no. Let’s explore what Florida’s 2nd District Court of Appeal said about this key issue in a major case: Hargrove v. State, 928 So.2d 1254 (Fla. 2d. DCA 2006).

KEY CASE: Hargrove v. State, 928 So.2d 1254 (Fla. 2d. DCA 2006)

In Hargrove, the defendant (Hargrove) was driving a vehicle with three passengers in it – one in the front seat and two in the back. The vehicle was pulled over, and Hargrove exited the car to speak with officers while the three other passengers remained in the car.

Two other deputies arrived minutes later, one of whom looked inside the vehicle and spotted a “smoking crack pipe” on the driver’s side floorboard. None of the deputies saw Hargrove in actual possession of the pipe. When deputies attempted to seize the pipe, Hargrove physically resisted them, but they ultimately retrieved it and arrested him.

Hargrove was charged with resisting an officer with violence (for trying to obstruct the deputies from entering the vehicle), as well as possession of drug paraphernalia for the pipe. Residue on the pipe tested positive for cocaine, resulting in Hargrove facing a cocaine possession charge (third-degree felony).

Hargrove was convicted on all counts. On appeal to the 2nd DCA, Hargrove argued that he was not proven to have been in constructive possession. Hargrove introduced a defense at trial that while he stepped out of the vehicle to speak with detectives, another passenger could have put the pipe there.

The 2nd DCA agreed with Hargrove, reversing his convictions for possession of paraphernalia and cocaine possession (due to this charge stemming from the pipe). The court observed:
“Because Hargrove was not in actual possession of the pipe, the State had to establish his constructive possession of the pipe and residue. In a constructive possession case, it is the State’s burden to ‘prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items, was able to exercise dominion and control over them, and knew of their illicit nature.’”

The 2nd DCA also noted that in vehicles containing multiple passengers, a defendant’s “mere proximity” to paraphernalia is insufficient to establish constructive possession. Skelton v. State, 609 So.2d 716, 716-17 (Fla. 2d DCA 1992).

Evaluating Hargrove’s case, the 2nd DCA found the State had no “independent proof” Hargrove knew about the pipe, or was able to exercise dominion or control over it. The court wrote:

“Here, the State’s sole proof of Hargrove’s constructive possession was the pipe’s proximity to the seat that he had been occupying in the car. Even if we accept the State’s view of the evidence and its argument that Hargrove’s knowledge of the contraband should be inferred because the pipe was emanating smoke when the deputy found it, there was no evidence that Hargrove was able to exercise dominion and control over the pipe.”

“Because the State did not present sufficient evidence to establish Hargrove’s constructive possession of the pipe and residue, the trial court erred by not granting his motion for a judgment of acquittal as to the possession charges.  Therefore, we reverse Hargrove’s convictions and sentences for possession of cocaine and possession of drug paraphernalia. We affirm his convictions for resisting an officer with violence and battery on a law enforcement officer.”

Essentially, the 2nd DCA ruled that the crack pipe being found on the floorboard near where Hargrove was sitting could not establish constructive possession. With multiple other passengers in the vehicle and no incriminating statements from Hargrove himself (admitting the pipe was his) or other passengers, the State’s entire case was based on impermissible “inferences.”

In sum, Hargrove v. State, 928 So.2d 1254 (Fla. 2d. DCA 2006) is a major contribution to Florida’s corpus of case law surrounding constructive possession of drugs and drug paraphernalia on jointly occupied premises. 

Some big takeaways from Hargrove v. State, 928 So.2d 1254 (Fla. 2d. DCA 2006) include:

• If contraband is discovered in a jointly occupied home or vehicle, a lack of incriminating statements made by any occupants can go a long way in defeating the State’s case
• Even when it appears quite “obvious” that drugs or paraphernalia belong to a defendant (e.g. in Hargrove’s case), Florida does not allow convictions on constructive possession without independent proof (e.g. confessions, DNA/fingerprints, witness testimony)

Without evidence of actual possession, the State must supply actual proof (not just “infer”) that a defendant had both knowledge and the ability to control the contraband they are charged with possessing. If this is not shown beyond a reasonable doubt, Hargrove recognizes that a defendant cannot be convicted on a theory of constructive possession.

If someone is concerned about a charge of possession of drug paraphernalia, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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