Constructive Possession

Constructive Possession

The police arrested me because I was sitting closest to the pot, and it wasn’t even mine! Can they do that?

It happens all the time. A police officer pulls over a car for a traffic violation. The officer might see some contraband (drugs, etc.) in plain sight. Or the officer might request permission to search the car, and the driver is so scared that he gives permission, and then the police officer finds some contraband (drugs, etc.) in the glove compartment, under the seat, etc.

Then the police officer asks who is the owner of the contraband (drugs, etc.). No one answers. Then the police officer arrested the person who was sitting closest to the contraband (drugs, etc.), or sometimes the police officer will arrest the owner or the driver of the vehicle.

So, the question is: Is that right? Is that fair? More importantly, will that arrest “hold up” in court. The answer is complicated. Florida has a legal doctrine known as the Doctrine of Joint Constructive Possession (no pun intended). This doctrine determines when the police can make a valid arrest for possession of contraband (drugs, etc.) in a situation where multiple persons are close to the contraband (drugs, etc.).

The Doctrine of Joint Constructive Possession can apply to any kind of contraband. It can apply to an arrest for possession of drugs, such as marijuana (also known as “pot” or “weed”), cocaine, or any other illegal drugs. Of course it could apply to an arrest for possession of other contraband as well, such a minor in possession of alcohol. In addition, the doctrine can apply to a person in possession of a medication without a prescription that is also a controlled substance, such as Xanax (Alprazolam), or some other prescription medication that is also a controlled substance.

A skilled and experienced criminal defense attorney can raise this issue in Court and put the burden on the Office of the State Attorney (the prosecutor) to justify the arrest. If the State cannot justify the arrest, as required by the Doctrine of Joint Constructive Possession, then the Court will dismiss the charge. In short, this doctrine is a powerful tool in the hands a skilled and experienced criminal defense attorney.

As with all legal issues, every case is different, and legal analysis is required to determine if the doctrine of Joint Constructive Possession applies to a particular case. If you or a loved one has been arrested, it is important to hire a skilled and experienced criminal defense attorney to protect your rights as soon as possible. The faster you hire an attorney, the faster you have someone on your side looking out for you and protecting your rights.
May 2015
July 2013
February 2013