Major Florida Court Rules Confession Is “Independent Proof” of Constructive Possession

October 9, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 2nd District Court of Appeal rules that a confession to possessing drugs can lead to a conviction on a theory of constructive possession – even if no additional evidence besides the defendant’s proximity to the drugs is provided.

In Florida, “constructive possession” is established when the State proves someone knew of an illegal item and had the ability to exercise dominion and control over it. 

Note: “Dominion and control” refers to the authority and ability to exercise power over an item, even if someone does not currently have it in their physical possession. Brown v. State, 428 So. 2d 250 (Fla. 1983)

If someone is found to have constructively possessed contraband (illegal items such as drugs, child pornography, illegal guns), they may be convicted of possessing the item(s) just as if they were found in actual possession (e.g. they had the item in their hand or on their person).

To convict a defendant on a theory of constructive possession, the State must produce evidence at trial aside from “mere proximity” to the contraband (e.g. the defendant being located near where the contraband was found). Brown v. State, 428 So. 2d 250 (Fla. 1983). 

But if there is no independent evidence establishing constructive possession of contraband other than a defendant’s post-Miranda confession, can the confession alone be a basis for conviction? The answer is yes – according to a significant new Florida court ruling. 

This blog will discuss Thompson v. State – which was recently decided by Florida’s 2nd District Court of Appeal.

Major New Case: Thompson v. State, Fla. 2nd DCA (July 25, 2025)

In Thompson, the defendant (Thompson) was convicted of trafficking in methamphetamine, possession of fentanyl, and possession of drug paraphernalia. He was sentenced to five years in prison, and appealed his convictions to the 2nd District Court of Appeal (Tampa area).

Thompson was traveling in the front passenger seat of a vehicle that was stopped by an officer. A K-9 officer alerted to the presence of drugs in multiple areas of the car upon sniffing, including in a case between Thompson’s feet. The case contained methamphetamine, fentanyl, and various alleged paraphernalia items (e.g. pipes, baggies, cut straws).

Thompson was ultimately taken to the police station and waived his Miranda rights, agreeing to speak with law enforcement. Officers questioned him about the black case between his feet, and Thompson confirmed he’d just purchased “the meth” for approximately $100. 

Thompson did not admit to possessing the fentanyl, but conceded he had smoked “fenty” earlier that same day. Moreover, Thompson conceded that he used a cut straw to smoke narcotics, which was found in the black case.

At trial, Thompson moved for a judgment of acquittal (MJOA), arguing that the evidence offered by the State was insufficient to convict him. A successful MJOA would have led to the dismissal of the charges before jury deliberations. 

The judge denied Thompson’s motion, ruling that Thompson’s confession provided independent evidence sufficient to allow conviction on a theory of constructive possession. As a result, the trial proceeded and the jury found Thompson guilty on all counts.

Though Thompson argued on appeal that this was insufficient to support a conviction, the 2nd DCA disagreed. It held that his post-Miranda confession could serve as the basis for the jury finding Thompson guilty, as Thompson’s confession showed “independent proof of knowledge” of the drugs.

The 2nd DCA observed that constructive possession occurs when the State proves the following beyond a reasonable doubt:

• The defendant had knowledge of the contraband (e.g. illegal drugs)
• The defendant had the ability to exercise dominion and control over the contraband

The 2nd DCA reiterated that when contraband is discovered in a vehicle with more than one passenger, the ability to exercise dominion and control over the item(s) cannot be established by proximity (being physically close to the contraband) alone. Other evidence must exist. 

The court held that in Thompson’s case, the independent proof did not have to come in the form of “hard evidence” (e.g. DNA, surveillance footage, phone records) tying him to the drugs. The introduction of any independent evidence from which a jury could infer dominion and control is sufficient.

The court also distinguished Thompson’s case from precedent he cited (Gizaw v. State, 71 So. 3d 214, 218 (Fla. 2d DCA 2011); Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006)). In Gizaw and Hargrove, no evidence at all existed from which the jury could infer constructive possession aside from mere proximity. In Thompson’s case, his confession was introduced.

The 2nd DCA concluded the following:

“Thompson’s post-Miranda statements and the circumstances were sufficient to establish independent proof of knowledge and the ability to exercise dominion and control over the contraband. The trial court did not err by denying Thompson’s motion for judgment of acquittal.”

The State presented sufficient proof to establish Thompson’s constructive possession of the contraband to allow the case to go to the jury. Thus, we affirm his judgment and sentences.”

Thompson will likely be considered significant precedent in future constructive possession cases. Given this ruling, if someone is found in “mere proximity” to contraband and is notified of their Miranda rights, a wise move is to exercise those rights. 

Respectfully tell law enforcement that you wish to remain silent and are requesting an attorney. Say all of this out loud, as if you simply stay quiet and do not say a word, police can continue questioning you. Berghuis v. Thompkins, 560 U.S. 370 (2010)

Due to Thompson, it is likely that many MJOAs or motions to dismiss that may have otherwise been granted will now be denied, even if post-arrest statements are the only evidence (other than “mere proximity”) tying a defendant to contraband. Observers should keep an eye out for other DCAs or the Florida Supreme Court weighing in on this issue.

If someone is concerned about a case involving alleged constructive possession, 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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