Actual possession is pretty simple, it consists of physically (or digitally) holding the elicit item or file on the person. Constructive possession is a concept designed for circumstances which are a little less clear cut.
In order to prove constructive possession in the state of Florida, the person must have dominion and control of the contraband, knowledge that it was actually within the person’s presence, and knowledge that the item was actually illegal to possess. This frequently manifests itself in cases where there is a search of a vehicle. If the state is able to convince a jury that the above three requirements are met, a case can be sustained for a passenger when contraband is found in a center console between the driver and passenger. Another common type of case for the state to pursue constructive possession is shared storage space. Drugs found in employee lockers or storage areas can sometimes sustain a case for possession when the person is no where near the storage area or even on the property. The complicated nature of proving these cases does allow for defense to rebut charges that are pursued in this way, however.
There are many ways to fight a constructive possession case, but the defenses are highly case specific. It’s important to speak to a qualified criminal defense attorney with experience successfully defending cases like yours.
The first step is to evaluate whether there is a constitutional defense that can be raised. Possession cases by their nature must begin with the police actually finding a contraband item, frequently these searches are performed in violation of fourth amendment protections and the entire case can be dismissed. It’s also possible to challenge the constructive possession itself, it’s a difficult burden for the prosecutor to prove beyond a reasonable doubt that the defendant had actually knowledge both that the contraband was there and also the illegal nature of it. A skilled criminal defense attorney can often tear apart this argument before it gains any traction.
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.