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Tampa Family Lawyer > Blog > Drug Crime > The Difference Between “Actual” And “Constructive” Possession Of Illegal Drugs

The Difference Between “Actual” And “Constructive” Possession Of Illegal Drugs


In order to be convicted of drug possession, the prosecution must prove beyond a reasonable doubt that you had “actual or constructive” possession of the illegal substance in question. Actual possession is just what it sounds like–i.e., the police actually find the drugs on your person or somewhere within “arm’s reach” that is under your control.

Constructive possession, in contrast, may be established if the government can prove you had “knowledge of the contraband” and the “ability to exercise domination and control over the contraband,” even if it is not on your person or within immediate arm’s reach. In other words, if the drugs were located somewhere in your house, and you were the only occupant at the time, that could be sufficient to establish constructive possession even if the drugs were not within your immediate arm’s reach at the time of arrest.

Florida Appeals Court Tosses Drug Conviction Due to Lack of Evidence

A recent decision from the Florida Second District Court of Appeal, Melton v. State, illustrates the critical role that establishing actual or constructive possession plays in a drug case. Here, police executed a search warrant for illegal drugs at a residence in Hardee County. Three people, including the defendant, were present at the residence during the search. The defendant was apparently staying in a trailer on the property next to the main residence.

When the police arrived, the defendant was seen working under the hood of a car parked next to the trailer. There was nobody else in the vicinity of the car. The police searched the car. They found a closed pillowcase on the front-side passenger seat. Inside that pillowcase was a quantity of illegal drugs. Police arrested and charged the defendant with drug possession.

At trial, the defendant argued the state could not prove actual or constructive possession of the drugs. The judge disagreed, saying there was “just enough” evidence to “prove his control over the area where the drugs were found.” The judge denied the defense motion for an acquittal and sent the case to the jury, which found the defendant guilty.

On appeal, the Second District reversed the convictions. The appellate court agreed the defendant was entitled to a judgment of acquittal. Based on the evidence presented at trial, the pillowcase on the passenger seat “was not within arm’s reach” of the defendant. He therefore did not have actual possession. Nor did he have constructive possession, as the prosecution never established the defendant “had exclusive control over the car.” It was not even made clear who owned the car. Another resident or person may have given the defendant the keys so he could work on the vehicle. And even if the defendant had “dominion and control over the car” when the police arrived, that still did not provide sufficient evidence that he had knowledge of the drugs inside the pillowcase.

Contact an Orlando Criminal Defense Lawyer Today

Police often jump to conclusions when making a drug arrest. But those conclusions often cannot be supported when a case gets to court. An experienced Tampa drug crimes defense lawyer can help ensure the state is held to its burden of proof. So if you have been arrested and charged with drug possession, contact the Faulkner Law Group, PLLC, to speak with an attorney today.



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