Constructive Possession & the Role of Your Tampa, St Petersburg & Clearwater Criminal Defense Attorney

The legal phrase “Constructive Possession” refers to a form or type of possession that is usually associated with the illegal use of narcotics or weapons. It differs from actual possession in that it usually involves evidence that is found in relatively close proximity to the person charged, rather than in their direct, personal possession.

As your criminal defense attorney should tell you, law enforcement in the Tampa Bay area has to meet the following standards in order to have probable cause to arrest someone for constructive possession:

1) Proof that the defendant knew of the presence of the contraband.

2) Proof that the defendant had the ability to maintain control over the contraband or take actual possession of it.

3) If a defendant is in exclusive possession of the premises (i.e. the only one in the vehicle or building), then his knowledge and control can be assumed.

4) If the defendant is not in exclusive possession of the premises, knowledge and control cannot be assumed, unless there are incriminating statements or other evidence that would link the defendant to the contraband.

Two cases which illustrate the limitations of law enforcement’s ability to arrest and obtain a conviction for constructive possession are Hatcher v. State 34 FLW D1643 (Fla. App. 1st, 2009), and Byers v. State 34 FLW D1707 (Fla. App. 2nd, 2009).

In the Hatcher case, Mr. Hatcher and another gentleman were seated at a table in a yard. Law enforcement approached and saw a small baggie sitting on the table, approximately 18” away from Mr. Hatcher. They seized the baggie, tested the contents (positive for cocaine), searched Mr. Hatcher, and found cocaine in his pocket. Mr. Hatcher admitted possession of the cocaine in his pocket and denied possession of the cocaine on the table.

Mr. Hatcher appealed the denial of his motion to suppress the evidence. The appellate court reversed. The Court noted that there was no proof that he admitted the baggie on the table was his or that he knew of its contents. The Court held that mere proximity, without more evidence, did not establish probable cause to arrest.

In the Byers case, law enforcement approached Mr. Byers standing outside of a motel room. They arrested him after he admitted having concealed weapons in his pocket. They then searched the motel room that was occupied by a second man. The search revealed car keys which Mr. Byers admitted were his and he gave them permission to search his car. The officers found a bag on the passenger side floor which contained narcotics. Byers admitted he knew there were drugs in the car and that the other man intended to sell them. He also said the man gave him a small amount of the drugs to drive him to the motel.

Mr. Hatcher appealed the denial of his motion for acquittal at trial on the charge of possession of narcotics. The appellate court agreed and reversed his conviction. The Court noted that Byers’ knowledge and ability to control the drugs could not be assumed because his car was not in his exclusive possession. The Court said that he admitted knowing about the drugs but proof of his ability to control the drugs could not be assumed and it was reasonable that the drugs belonged exclusively to the other man.

Moral: These cases illustrate how difficult an arrest and conviction can be where a defendant is not in exclusive control of a vehicle or building, and does not make incriminating statements that he owns the contraband.

For more information about how constructive possession may affect your case, please contact criminal defense attorney Charles Holloway, P.A. at (727) 446-8303 to schedule a free initial consultation. From our law office in  Clearwater, we proudly serve the greater Tampa Bay, Florida area.