Actual Possession
Criminal defense lawyers constantly fight cases where the legal definition of “possession” makes all the difference between a winning case and a losing case. While it is hard to imagine, police make thousands of arrests a year for possession with intent in the Fort Lauderdale area. Given how greatly one case can vary from another, there are many cases that can be won when prosecutors are unable to prove that the defendant was in possession of cocaine, whether with intent t sell, purchase, manufacture, deliver, or for personal uses.
Given this variability, the best criminal defense lawyers will scrutinize possession with intent cases to determine if there are any factual or legal problems with the prosecutor’s case. In other words, can the prosecutor really prove possession?
To determine whether or not any one case presents an opportunity for attack, a criminal defense attorney will first consider whether or not your case presents an instance of actual possession or constructive possession.
According to its legal definition, “possess” means to have personal charge of the object at issue or the ability to exercise the right of ownership, management, or control over the object in question.
When a criminal defense attorney analyzes a possession with intent case, one of the first things he/she must determine is whether or not the cocaine was in the hand of the defendant or on his/her person. In the alternative, if the cocaine was not in the defendant’s hand or person, was it inside a container being held by the defendant? If the cocaine was not in the hand or person of the defendant and it wasn’t in a container being held by the defendant, was the cocaine so close to the defendant that it was within ready reach and under the defendant’s control?
If the answer to any of those questions was yes, then the defendant was likely in actual control. However, being near or next to an object does not mean you possessed it. If cocaine is near you, but it is not in a place over which you exercise control, then mere proximity to the cocaine is not enough to establish the minimum requirements for possession. Put simply, to have actual possession with intent of cocaine that is nearby oneself, a person must also have control over the cocaine or over the place it is in or on.
In the next section, we will discuss constructive possession and how it relates to a criminal defense lawyer’s analysis of a cocaine case where the charge is possession with intent to sell, purchase, manufacture, or deliver.