Major FL Court Tosses Cocaine Trafficking Conviction, Finds No Possession: Here’s Why

January 14, 2026 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 5th District Court of Appeal ruled that a bag full of cocaine and marijuana found three feet away from both the defendant and another person could not be tied to the defendant in the absence of independent evidence that the drugs belonged to him.

In Florida, possession of cocaine and other drugs is prosecuted very seriously. Possession of controlled substances is typically considered a third-degree felony (up to 5 years in prison and a $5,000 fine). However, the charges can get significantly more serious if someone is found with a larger quantity of contraband. For more on this, click here.

In prosecutions for possession of controlled substances (and other contraband, such as illegal guns or drug paraphernalia), a prosecution may proceed on a theory of actual possession or constructive possession. The difference between these is key to understand if someone wishes to mount an effective defense against possession charges in Florida.

Actual possession is usually “easier” to prove, as allegations of actual possession of contraband typically arises out of law enforcement finding contraband in any of the following locations:

• In the defendant’s hand(s) or on their person
• In a container in the defendant’s hand(s) or on their person
• Within the defendant’s “ready reach” and exclusively under his dominion and control (Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017))

If any of the above occur, the State must still prove beyond a reasonable doubt that the defendant knew what the item was and that it was illegal. However, the issue of whether the contraband belonged to the defendant at all is essentially “resolved” from the start.

A prosecution may also proceed on a theory of constructive possession. Constructive possession is “indirect” possession. An allegation of constructive possession typically arises when police discover contraband and heavily suspect that it belongs to a particular person – but they did not find them in actual possession of it.

Constructive possession is typically harder to establish than actual possession, as the State must  prove all of the following beyond a reasonable doubt:  

• The defendant knew about the contraband (found in their presence, on their property, etc.)
• The defendant knew that the contraband was illegal (e.g. if a firearm, they knew they were prohibited from owning one)
• The defendant was able to exercise dominion and control over the contraband (T.W. v. State, 666 So.2d 1001, 1002 (Fla. 5th DCA 1996))

The last of these is sometimes quite difficult. If the State does not have “independent proof” that the defendant was able to exercise dominion or control (e.g. that the contraband was theirs, not someone else’s that they happened to be “close to”), a constructive possession conviction cannot occur as a matter of law. Brown v. State, 428 So. 2d 250 (Fla. 1983)

The only exception to this is when the premises are occupied by only the defendant, and there is no evidence that anyone else has been where the drugs are found. Otherwise, the premises upon which the contraband was discovered (e.g. house, car) are considered “jointly occupied” – so the State must provide independent proof tying the defendant to the illegal item(s).

Independent proof of constructive possession can come in various forms, such as (Santiago v. State, 991 So. 2d 439, 442 (Fla. 2d DCA 2008)):

• A defendant’s incriminating statements (e.g. “The drugs were mine…”)
• Witness testimony (e.g. someone else in the home/vehicle or an uninvolved witness claiming the contraband belongs to the defendant)
• Scientific evidence (e.g. DNA or fingerprints) tying the defendant to the illicit item(s) in question

In the event that contraband is discovered on jointly occupied premises and the State fails to provide any independent proof of the defendant exercising dominion and control over it, they are not guilty of the charges as a matter of law. Ford v. State, 69 So.3d 391 (Fla. 2d. DCA 2011) 

Note: For an even more comprehensive breakdown of actual versus constructive possession in Florida, click here.

A major case illustrating this time-honored legal principle in Florida is Harris v. State, 954 So.2d 1260 (Fla. 5th DCA 2007). Let’s take a look at Harris and what it means for defendants accused of constructively possessing contraband (especially cocaine and other controlled substances) in Florida.

KEY CASE: Harris v. State, 954 So.2d 1260 (Fla. 5th DCA 2007) 

In Harris, the defendant (Harris) allegedly went to Caster’s house to buy cocaine and cannabis. Law enforcement executed a search warrant on the home (as they were surveilling Caster) either while the alleged transaction was ongoing or immediately after it ended.

Harris and Caster were found in the living room, both seated approximately 3 feet away from an open brown bag on the floor. In the bag was approximately 28 grams of cocaine and over 100 grams of cannabis.

Harris was searched incident to arrest, and officers discovered approximately 2.7 grams of cocaine and 20 baggies of cannabis in Harris’s front pocket. He was charged with:

• Possession of marijuana with intent to sell or deliver
• Trafficking in 28 grams or more of cocaine (since the police added the 28 grams in the brown paper bag to the total found in Harris’s pocket)

As trafficking in cocaine is a first-degree felony (up to 30 years in prison and a $10,000 fine) and simple possession is a third-degree felony, Harris argued the State improperly charged him with constructively possessing the cocaine in the brown bag on the floor.

Harris moved for a judgment of acquittal at trial (MJOA) on the cocaine trafficking count, urging the trial judge to reduce this to simple possession (third-degree felony). Harris argued:

• There was no independent evidence showing that he exercised dominion and control over the bag (e.g. that the cocaine/marijuana inside was his, not Caster’s)
• Both he and Caster were feet away from the bag, making the premises “jointly occupied” (and it was Caster’s home)
• Because of this, the State could not say he constructively possessed the cocaine in the brown bag – requiring reduction of the charge to possession of cocaine (under 28 grams)

The State countered by arguing the cocaine found on Harris’s person during the search incident to arrest was the “independent proof” required to prove he constructively possessed the cocaine in the bag. The trial judge agreed, denying the MJOA – and Harris was convicted of trafficking.

Challenging the trafficking conviction, Harris reiterated his arguments to Florida’s 5th District Court of Appeal (Northeast Florida). The 5th DCA agreed with Harris and reversed his cocaine trafficking conviction, finding the State did not have independent proof that the cocaine was Harris’s (not Caster’s). The 5th DCA wrote:

“In this case, the State was obligated to establish the control element by independent proof. J.S.M., 944 So.2d at 1144; see also Wade v. State, 558 So.2d 107 (Fla. 1st DCA 1990). We conclude the State failed to produce independent proof that Harris, as opposed to Caster, controlled the contraband located in the brown bag. Furthermore, the fact that Harris was in possession of a small amount of cocaine on his person was insufficient to establish that he had dominion and control of the cocaine found in the brown bag. Allen v. State, 622 So.2d 526 (Fla. 2d DCA 1993).”

The 5th DCA also rejected the State’s argument that Harris was in actual possession of the bag because it was within his “ready reach,” finding that there was still no evidence of dominion or control (e.g. ownership as opposed to “mere proximity”):

“The State’s alternative argument that it produced sufficient evidence to establish actual possession also fails. Actual possession means that (a) the item is in the hand of or on the person; or (b) the item is in a container in the hand of or on the person; or (c) the item is so close that it is within “ready reach” of the person and the item is under the control of the person. Finklea v. State, 920 So.2d 156 (Fla. 1st DCA 2006). There was no evidence Harris ever had the 28 grams of cocaine (or the brown bag) in his hand or on his person. Although there was evidence the 28 grams of cocaine was within Harris’ “ready reach,” the evidence was, as discussed above, insufficient to establish the control element. We therefore reverse the trafficking conviction.”

The 5th DCA did not let Harris off the hook, however. Because the cocaine discovered on his person (2.7 grams) was actually possessed by Harris, the 5th DCA entered a conviction on the lesser-included offense of possession of cocaine (third-degree felony):

“It is undisputed that Harris was in possession of the cocaine found on his person. Accordingly, on remand, the trial court is directed to adjudicate Harris guilty of the lesser-included offense of possession of cocaine. See § 924.34, Fla. Stat.; Crain v. State, 894 So.2d 59, 76 (Fla. 2004). Harris’ conviction for possession of cannabis with intent to sell or deliver was not appealed. We affirm that conviction and remand to the trial court for resentencing in light of our reversal of the trafficking offense.”

In sum, Harris v. State, 954 So.2d 1260 (Fla. 5th DCA 2007) is a significant development in Florida case law surrounding actual and constructive possession. The 5th DCA held:

• The brown paper bag found three feet away from both Harris and Caster could not be said to belong to Harris, absent independent proof (e.g. confessions, DNA) showing the drugs were his
• Harris also did not actually possess the cocaine in the brown bag, as there was no proof he ever exercised dominion and control over its contents even if it was within his “ready reach”
• As a result, Harris could not be found guilty of trafficking cocaine (over 28 grams) – only simple possession of the 2.7 grams on his person

Florida’s criminal defense community should take note of Harris v. State, 954 So.2d 1260 (Fla. 5th DCA 2007), as it clearly outlines the framework through which trial judges must evaluate whether a defendant can be found to have constructively possessed drugs (or other contraband) as a matter of law.

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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