Constructive Possession
Once a criminal defense lawyer has had a chance to rule out the possibility of actual possession in your case, he/she will then consider whether or not constructive possession is an issue. In other words, if the prosecutor can’t prove actual possession with intent, can he/she prove constructive possession with intent.
These questions come up in cases where more than one person resides in a residence where a drug bust has taken place. Is only one resident the dealer or are both dealers? Where was the cocaine found? Was it in a communal area or in one resident’s private area?
According to the official legal definition of constructive possession provided by Florida Statutes, the cocaine would have to be in a place where the defendant has control over the cocaine or where he/she has concealed it. In order to establish constructive possession with intent, if the cocaine is in a place where the defendant does not have control, the prosecutor must prove the following:
1) The defendant had control over the cocaine, even though he did not have control over the place where it was found,
and
2) The defendant had knowledge that the cocaine was within his/her presence.
It is extremely important to realize that possession of cocaine may be joint. Meaning, more than one person may have possession of the same cocaine at the same time. This generally occurs when more than one person exercises control over the cocaine in question at the same time.
Moreover, if a person has exclusive possession of cocaine, it is assumed that he/she knew of its presence. Likewise, if a person does not have exclusive possession of cocaine, then it is not assumed that he/she knew of its presence.
These factors are extremely important for a criminal defense lawyer because they will directly impact how a jury perceives your case. If a jury can be convinced that you were in actual possession of cocaine or in constructive possession of cocaine, Florida Statutes permits then to presume that you were aware of the illicit nature of the substance in question… in other words, that you knew you were in possession of cocaine.
On the contrary, if a criminal defense lawyer is able to convince a jury that there is a reasonable doubt on the question of whether you knew of the illicit nature of the substance, the jury would have to find you not guilty. In other words, your criminal defense attorney could challenge whether or not you knew of the illicit nature of the cocaine, you might be able to win your case at trial. To determine if this is a realistic possibility in your case, a detailed analysis of your case facts will be required.