Actual Possession vs. Constructive Possession of a Controlled Substance

When police find illegal drugs, they will often arrest everyone they find near those drugs. Luckily, the law requires more evidence than just proximity to convict people of drug possession.

There are two types of possession under Florida law. The first is actual possession. This is what most people think of when they think of possession. Actual possession means direct, physical control of an object, such as the police finding a bag of drugs in a jacket that the defendant is wearing. These cases may seem difficult to defend against, but an experienced attorney may be able to fight them by showing that a search was unconstitutional.

The second type of possession is constructive possession. The state will try to charge a defendant with constructive possession when drugs are found near them. Police commonly arrest people for constructive possession of drugs when a controlled substance is found in a car occupied by multiple people or when drugs are found in a public space.

Fortunately for defendants, constructive possession can be hard to prove. The prosecution must prove dominion and control of the property. A driver with a key to a trunk may be shown to have control of that property. Similarly, a passenger seated near an unlocked glove box may be shown to have control. However, when a compartment is locked or the substance is found in a public place, it can be difficult for the state to show control. An experienced criminal defense attorney will work to dismantle the state’s case.

An additional part of proving constructive possession involves showing that the defendant knew the drugs were there and knew that they were illegal. The state will often have to use circumstantial evidence, such as the words and actions of the defendant and others, to show that the defendant knew the drugs were present. It can be very hard to prove what a defendant knows, especially if that defendant exercises their right to remain silent at the scene. Running away from police or attempting to hide or throw something are actions typically presented to show that a defendant knew controlled substances were present.

Time and time again, attorneys at Largey Law have been able to protect their clients’ freedom by making it difficult for the government to prove a defendant knew of and was able to control the drugs. If you have been stopped by police in Florida, be careful about what you say, and contact us online or call us at [In::phone] right away.