North Florida’s Highest Court Reverses Illegal Ammo Possession Conviction, Finds No Constructive Possession

January 14, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 1st District Court of Appeal found that a defendant was not guilty of constructively possessing ammunition in a bag that was in plain view – but closer to where his front seat passenger was sitting than he was – when neither confessed to owning the ammunition.

 

In Florida, actual possession and constructive possession are two “theories” the State can rely upon to prosecute someone for allegedly possessing contraband (e.g. illegal guns, paraphernalia, drugs). The distinction between these is critical to understand if someone is accused of actually or constructively possessing one or more illegal items.

 

Actual possession occurs when a defendant is alleged to have physically possessed contraband. Legally, if the State proves beyond a reasonable doubt in Florida that a defendant did any of the following, they are guilty of “actually possessing” the illegal item(s):

• The contraband is found in the defendant’s hand(s) or on their person
• The contraband is found in a container in the defendant’s hand(s) or on their person
• The contraband is discovered within the defendant’s “ready reach” and exclusively under their dominion and control (e.g. not on jointly occupied premises)

 

Actual possession is generally “easier” for the State to prove than constructive possession if it is alleged – as this typically results from law enforcement physically seeing a defendant with the contraband. As long as it can also be proven that the defendant knew what the contraband was and that it was illegal, they are guilty. Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017)

 

But if actual possession is not shown, a prosecution may proceed on a theory of constructive possession. Constructive possession occurs when the State proves 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))

 

Critically, none of the above can simply be “inferred” by the location of the contraband. If illegal drugs, guns or other illicit items are discovered in a particular area, it cannot automatically be attributed to the defendant by “mere proximity.” Brown v. State, 428 So. 2d 250 (Fla. 1983)

 

The only exception is when the defendant is the only (sole) occupant of the premises on which the contraband is found (e.g. in a home or car) and the contraband is discovered in “plain view” (e.g. sitting out in the open). 

 

Otherwise, the State must provide independent proof of the defendant’s knowledge and ability to exercise dominion and control over the contraband. Santiago v. State, 991 So. 2d 439, 442 (Fla. 2d DCA 2008)

 

This independent proof typically comes in one of a few forms, including (but not limited to):

• 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

 

Note: For a comprehensive breakdown of actual possession versus constructive possession under Florida law, click here.

 

Independent proof is critical in cases where a person is accused of constructively possessing contraband on jointly occupied premises. Examples of “jointly occupied premises” include:

• A house with four people inside
• A car with a driver and two passengers inside
• An apartment where the defendant is the only one currently inside, but others are known to live there

 

If contraband is discovered on jointly occupied premises – even if it is in plain view and within the defendant’s reach – the State must provide independent evidence of knowledge and ability to exercise dominion of control. Otherwise, someone is not guilty as a matter of law of constructive possession.

 

This principle was illustrated in a key case decided by Tallahassee and North Florida’s highest court stemming from allegedly unlawful constructive possession of ammunition by a convicted felon, who was driving a jointly occupied vehicle. Smith v. State, 175 So.3d 900 (Fla. 1st DCA 2015)

 

Let’s take a look at Smith and what it means for defendants accused of constructively possessing contraband on jointly occupied premises.

 

KEY CASE: Smith v. State, 175 So.3d 900 (Fla. 1st DCA 2015)

 

In Smith, the defendant (Smith) was accused of illegally possessing ammunition in violation of Florida’s prohibition on felons possessing firearms and ammunition. Smith was charged (as he was a felon) and convicted.

 

Smith was pulled over driving a vehicle with a passenger, named Harlee Manning. Officers saw in the front cup compartment a clear plastic bag that contained ammunition. Officers conducted a full search of the vehicle, which revealed the presence of drugs and paraphernalia. 

 

Smith was also convicted of possessing these items – including a bag of pseudoephedrine pills, which was located in plain view in the driver’s side door panel.

 

At trial, Smith moved for a judgment of acquittal (MJOA), arguing the State had provided no independent proof that the ammunition bag and pills were his. Smith noted that:

• There was another person in the car, so the premises were jointly occupied
• Though both of the items were found within his immediate reach, this was insufficient to establish dominion and control without other evidence (e.g. DNA or fingerprints, which the State did not have) since the vehicle was jointly occupied
• Since all the State had was Smith’s “mere proximity” to the contraband, he was entitled to dismissal as a matter of law (since the State was alleging constructive possession)

 

However, the trial judge denied Smith’s MJOA request – and he was convicted on all charges (including possessing the ammunition in the cup holder).

 

On appeal, Smith reiterated his argument that he did not constructively possess the ammunition in the bag, nor the pseudoephedrine pills. Florida’s 1st District Court of Appeal partially agreed with him and reversed Smith’s conviction for possessing the ammunition, but not for possession of the pseudoephedrine pills.

 

The 1st DCA found there was no “independent proof” establishing Smith was able to exercise dominion and control over the ammunition (e.g. that it belonged to him and not the passenger):

 

“As to the plastic bag of ammunition, this case is factually similar to the circumstances in Martoral. Like that case, the contraband at issue here was found in plain view in a compartment (a cup holder) located between Smith and Manning, the other occupant of the vehicle. Although the ammunition was in Smith’s ready reach, the cup holder was not shown to be within his exclusive control. In fact, Officer Bagwell testified at trial that the plastic bag was actually closer to the passenger seat, where Manning was sitting, than the driver’s seat, where Smith was located. 

 

“Thus, the State failed to establish that Smith had exclusive control over the place where the ammunition was located, making any inference that he had the ability to control the contraband impermissible. Moreover, the State did not offer any independent proof tying the ammunition to Smith as opposed to Manning. It was undisputed that Smith was not the owner of the truck, there was no evidence that he purchased the ammunition or placed it in the truck, and no fingerprints were obtained to show that it belonged to him. In sum, Smith’s mere proximity to the ammunition, without more, was not legally sufficient evidence of the element of control. Accordingly, the trial court erred in denying Smith’s motion for judgment of acquittal on the charge of possession of ammunition by a convicted felon.”

 

Put simply, the 1st DCA found that the State impermissibly assumed (without independent proof) that the ammunition belonged to Smith when it could have also belonged to Manning. As both were in the vehicle at the time of the search and no DNA or other evidence tied the ammunition to Smith, reversal of his conviction was required.

 

However, the 1st DCA affirmed Smith’s conviction of possessing the pseudoephedrine pills on the grounds that it was in plain view, within his immediate reach, and that Smith was exercising exclusive control over the driver’s side door panel at the time of the search:

 

“The State’s evidence was sufficient to establish that Smith had exclusive control over the driver’s side door panel where the blister packs of pseudoephedrine were found. By establishing Smith’s control over that area of the vehicle, the jury was permitted to infer that he also had the ability to exercise dominion and control over the blister packs. In addition, the presence of the digital scales, the bottle of MSM, and the purported drug transaction receipt containing Smith’s nickname “Whiskey,” were sufficient to create a question of fact about his intent to use the pseudoephedrine to manufacture a controlled substance. For these reasons, the trial court properly denied Smith’s motion for judgment of acquittal on the charge of possession of a listed chemical.”

 

The 1st DCA also noted the circumstantial evidence that the pills were Smith’s (e.g. the receipts), which arguably qualified as the “independent proof” required to support a conviction.

 

In sum, Smith v. State, 175 So.3d 900 (Fla. 1st DCA 2015) is a significant development in Florida case law regarding constructive possession on jointly occupied premises. The 1st DCA (North Florida’s highest court) found:

• There was no independent evidence connecting Smith to the ammunition in the cup holder – and he did not exclusively control the area because he also had a front seat passenger – so his conviction of constructively possessing it required reversal
• Smith did exclusively control the area where the pills were found, and circumstantial evidence (e.g. receipts, paraphernalia) indicated they belonged specifically to him – so his conviction for possessing pseudoephedrine was affirmed

Florida’s criminal defense community should take note of Smith, as it is a fascinating case on the issue of constructive possession. The 1st DCA’s comprehensive analysis of when contraband on jointly occupied premises can (and cannot) be tied to the defendant is both intriguing and likely to be useful in Florida criminal trials.

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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