North FL’s Highest Court: Fingerprints Did Not Establish Constructive Possession

February 9, 2026 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 1st District Court of Appeal ruled that the presence of a defendant’s fingerprint on a potato chip can in which a marijuana plant was growing was insufficient to establish that the defendant constructively possessed the marijuana.

In Florida, possession of a controlled substance (such as cocaine or marijauna) is a very serious offense. This is typically considered at least a third-degree felony (punishable by up to 5 years in prison and a $5,000 fine), though simple marijuana possession is a first-degree misdemeanor (up to 1 year in jail and a $1,000 fine).

If someone is accused of possessing a controlled substance (or other contraband, such as illegal guns or paraphernalia), there are two “theories of possession” that can guide the State’s case. The first of these is actual possession, and the second is constructive possession.

Actual possession is generally considered the “easier” form of possession to prove, as a charge of actually possessing contraband usually arises from law enforcement’s observations of contraband in the hands of a defendant or on their person. 

Per Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017), someone is considered to be in “actual possession” of contraband if any of the following are true:

• 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 his dominion and control

If someone is not found in actual possession of contraband, this does not preclude someone from being prosecuted for possessing it. If the State heavily suspects that drugs (or other contraband) belongs to a particular individual – but they were not found in actual possession – the State is likely to proceed on a theory of constructive possession.

There are two types of constructive possession cases: constructive possession on solely occupied premises, and constructive possession on jointly occupied premises.

In either scenario, 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 gun, 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))

If premises (such as a home or car) are solely occupied by the defendant (e.g. the defendant is the only one there), knowledge, dominion and control can be inferred if contraband is found in plain view. However, if contraband is not in plain view, “mere proximity” is insufficient as a matter of law to prove constructive possession. Brown v. State, 428 So. 2d 250 (Fla. 1983)

In the event that contraband is discovered on jointly occupied premises, the State cannot infer constructive possession (dominion and control), regardless of if the contraband is in plain view.

Jointly occupied premises include:

• Premises that are actively occupied by at least one person other than the defendant at the time of the contraband’s discovery
• Premises that were recently occupied by one or more persons other than the defendant, even if the defendant was the only one there at the time of the contraband’s discovery

Some “real-life” examples of jointly occupied premises include any of the following:

• A vehicle containing three passengers, including the defendant
• A home with four residents, only two of whom are there at the time of a search
• A recording studio used by many different people, but only one is there at the time contraband is discovered

If contraband is discovered on jointly occupied premises, the State must provide independent evidence tying the defendant specifically to the contraband. Otherwise, a constructive possession charge must be dismissed as a matter of law upon a defendant’s motion. 

For purposes of establishing constructive possession, independent evidence may include any (or all) of the following:

• 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 on actual possession versus constructive possession in Florida, click here.

Just because the State has independent evidence that contraband was constructively possessed by the defendant, does not mean the defendant will be found guilty. The State must disprove every “reasonable hypothesis” of a defendant’s innocence (raised by the defense) beyond a reasonable doubt for a constructive possession conviction to be supported.

In one major case that played a role in shaping constructive possession law in Florida, police found a marijuana plant growing in a potato chip can (on jointly occupied premises) that they tied to the defendant. The defendant (Arant) was charged with and convicted of illicit marijuana possession.

The sole “independent evidence” connecting the defendant to the potato chip can containing the marijuana was a single fingerprint recovered from the can’s exterior. However, North Florida’s highest court ruled this was legally insufficient to support a finding of constructive possession.

Let’s take a look at that case – Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972) – and what it means for defendants in Florida accused of constructively possessing contraband.

KEY CASE: Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972)

In Arant, the defendant (Arant) was a college student who frequently visited his girlfriend at her apartment. Law enforcement obtained a warrant to search that apartment – and recovered three marijuana plants in the backyard. Two were growing in milk cartons, and one was growing in a potato chip can.

The containers were swabbed, and one of Arant’s fingerprints was found on the potato chip can. Because of this, Arant was charged with constructively possessing the marijuana on jointly occupied premises. 

This was despite the fact that there was no other evidence (e.g. DNA/incriminating statements) tying Arant to the marijuana in the can, and the fact that the can was found in the backyard of his girlfriend’s apartment. Nevertheless, Arant was convicted.

Arant appealed to the 1st DCA, arguing that he was merely a visitor. Because the premises were jointly occupied and there were “reasonable hypotheses of innocence” that the State failed to eliminate, Arant claimed his conviction required reversal as a matter of law.

The 1st DCA agreed with Arant and reversed his conviction for possessing the marijuana. The 1st DCA noted that even if the fingerprint established knowledge of the marijuana, this did not establish Arant’s dominion and control (e.g. ownership) of it:

“Appellee argues that the sole fingerprint on the potted plant is proof enough of the knowledge factor spoken of in the decisions. Even if this were so, which we do not now hold, it would only prove that he knew the drug was present in the premises—assuming, of course, that appellant knows a marijuana plant from some other species.”

However, the 1st DCA found that the fingerprint failed to even provide evidence of knowledge. This was because Arant could have touched the can at any time – including before a marijuana plant was ever grown inside it:

“The fingerprint proves quite conclusively that the appellant touched the can. It tells us nothing about when. It could have been before the plant was in the can or it could have been afterwards. Obviously the trier of fact thought it probable that the print was made after the plant’s presence in the can was manifest. But guilt cannot rest on mere probabilities. It is no less probable that the print was made before the plant was put in the can or perhaps while it contained a seed not yet visible.”

Since there was no evidence Arant’s fingerprint arrived on the potato can after the marijuana was being grown inside it, the 1st DCA found that the State had no real evidence Arant constructively possessed the marijuana inside – requiring reversal of his conviction:

“In the case at bar, the use of fingerprints proves only that the appellant touched the can. Whether on the subject premises or elsewhere, it does not tell. It is only proof of the identity of the person who touched the can. It was in no way declaratory of his knowledge that the contents of the can were contraband and was in no way declaratory of that degree of control or dominion over the contraband which would show possession within the meaning of the statute. In order to be evidence sufficient to sustain a charge of possession under the statute, evidence of a single fingerprint on a can must be aided by other proof … In the case at bar, however, there is no evidence from which it can be inferred that appellant had the subject plant in his possession to the extent that he controlled it or held the same at his disposal.”

In sum, Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972) continues to be a significant case in Florida’s corpus of case law on the issue of “independent proof” of constructive possession on jointly occupied premises. The 1st DCA found:

• The only evidence tying Arant to the marijuana plant he was prosecuted for possessing was a single fingerprint on the outside of the potato chip can the plant was growing inside 
• The can (and marijuana plant therein) were discovered on jointly occupied premises
• Because constructive possession could not be inferred, the State was required to provide evidence that Arant’s fingerprint on the can got there after the marijuana plant was placed inside
• There was no evidence presented of this, requiring reversal of his conviction

Florida’s criminal defense community should take note of Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972), as fingerprints alone are not “independent proof” of constructive possession if:

• The premises upon which the contraband is discovered are jointly occupied, and 
• The State cannot tell when the prints got there

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 criminal 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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