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Actual possession

Actual Possession simply means that the drugs, contraband or illegal substance are found on your person, clothing or body. 

It also means to have immediate and direct physical control over the property, substance or contraband. 

When the police finds drugs inside the pockets of your clothing, shoes, or bags that you are carrying, the prosecutors will argue that you were in “actual  possession” of the drugs.

Constructive possession

Constructive possession on the other hand, is commonly defined as the having knowledge, and conscious power and intention to exercise dominion and control over property, drugs or contraband BUT WITHOUT DIRECT control or actual possession over such property.

Constructive possession usually occurs when police officers or investigators suspect or believe that the suspects have knowledge of where the contraband exist.   Law enforcement and prosecutors often argue that defendants “were in constructive possession of…..” when suspects are stopped in a vehicle, truck, or boat.

If law enforcement believe that the suspects had knowledge of the contraband found inside the vehicle, they will argue that the driver, passenger or occupants were in “constructive possession”.  Often, the drugs are found in the trunk, or other locked compartments, but the principle still applies if the suspects had access to the drugs, etc.

The State of Florida needs to prove three requirements of
constructive possession.  First, the
suspects had dominion and control over the drugs, etc.  Secondly, suspects knew that the drugs were
present in the vessel, car, truck etc. 
Third, suspect KNEW of the illicit nature.

Simply being “close” to the drugs is NOT enough to be convicted of the charge.  “Proof of mere proximity of the Defendant to the drugs is insufficient to sustain conviction of constructive possession. See Davis v. State. 761 SO.2d 1154 (Fla. 2nd DCA 2000).

Possible Defenses

There are many defenses to charges involving possession of drugs, contraband or illicit property.

  • Did you actually have knowledge of the property found in the car, truck etc? 
  • Was the vehicle yours, or someone elses? 
  • Did you just borrow the vehicle and didn’t know what was inside?
  • Can the Prosecutors prove that you knew the property was illegal per se?
  • If the drugs, or contraband was hidden inside an otherwise innocent looking container, could anyone knew what was inside?
  • Did you actually have control or access to the drugs?

If the drugs were locked in a compartment with a key you did not have, control is difficult to prove.

Contact an Experienced Criminal Defense Attorney Today

When charged with any crime involving possession of drugs, contraband or illegal property, it is important to retain an attorney that is experienced, determined and knowledgeable in defending your case.  Attorney Alain Rivas experience and knowledge will help you successfully fight your charges.