Is It "Possession" If I Didn't Touch It?

How can the State charge me with drug possession when they didn’t find any drugs on me?

Can the police arrest me for possession of a firearm that I never touched?

Issues surrounding the word "possession" in criminal cases are some of the most common, and complicated, questions that criminal defense lawyers encounter.  This blog post is intended to answer some of these questions and resolve common misconceptions.

Under Florida Law, "possessing" something means that you have personal charge of, or exercise the right of ownership, management, or control over, an object.  But... what does that mean?

First and foremost, this means that the State can, in fact, charge you with possession of contraband even though the contraband was not found on or taken directly from you.  This is allowed under the legal concept of constructive possession.

In short, actual possession exists where contraband is found either on the defendant’s person (like, in your hand, or in your pocket), in a container (bag, backpack, medicine container, etc.) carried by the defendant, or where the contraband is so close to the defendant that it is readily accessible (as a prosecutor might argue in a closing statement, “within ready reach”).    Overall, actual possession encompasses the types of scenarios the average person would imagine when thinking about the meaning of the word "possession".

The concept of "constructive possession", on the other hand, is a more significant cause of confusion.  The legal definition of constructive possession requires that an object is in a place over which the defendant has control, or, in a place where the defendant has concealed it.

So, what if something illegal is found in a place that is under your control - but also under the control of others (for example, a vehicle with multiple occupants, or a living room with multiple people)?  In this situation, the State must demonstrate that the defendant:

(1) has knowledge that the object was there, and

(2) has control over the object.

An important element of a possession charge, particularly where contraband is located in an area occupied by multiple people, is "knowledge that the object was there".  Although knowledge can be inferred or assumed when the defendant has exclusive possession over contraband, this does not apply where there is joint possession.   As long as the contraband is not found in plain view, the State may have a difficult time proving that any one particular person present knew of its presence.  For example, how could it be proven that the passenger of a vehicle knew that there was marijuana inside the closed center console of a vehicle his friend is driving?  Often times, it can't.

In many criminal cases involving constructive possession, there are additional facts and circumstances the State relies upon in demonstrating the Defendant's knowledge of the presence of contraband.  It may be that the contraband is in plain view, where everyone can see it, or that the Defendant made an admission (“I knew the gun was there, but it isn’t mine”) to police.  Under these circumstances, these types of statements to the police can be devastating to the defense of a resulting criminal case.  

Even if the State can prove that a person knew that contraband was present, it also has to prove that he or she had dominion and control over the contraband.  For instance, when the defendant is in a place that is not in his or her control (like another person's house or car), the law requires the State to prove beyond a reasonable doubt that the defendant had the ability to exercise control over the contraband. 

The following standard jury instruction (read to juries before they deliberate on a verdict) can be helpful to the Defense: 

“Mere proximity to an object is not sufficient to establish control over that object when it is not in a place over which the person has control.” 

For example, imagine a person is charged with possession of contraband.  The contraband was found inside of a safe in the room of the defendant’s friend.  At the time the police entered the room, the defendant was standing next to the safe, or perhaps even resting his arm against the safe.  When questioned, the defendant admits that he knew his friend kept illegal contraband in the safe and that there was in fact contraband in the safe at that time.  The defendant, however, does not own or live in the house, does not own the safe, and does not know the code or have access to the safe.  Even though the defendant was found right next to – maybe even touching – the place where the contraband was found, and the defendant admitted he knew the drugs were there, he had no ability to exercise control over the safe and/or contraband.  

Finally, it is important to note that more than one person can be charged with possession of the same contraband, as long as the State can prove that each person had the ability to exercise control over the contraband.  For example, during a search of an apartment, police find contraband on a living room table, in plain view, and both occupants of the apartment were sitting around the table when the police entered.  Here, the State could charge both roommates with possession of the contraband. However, if only one person claims ownership of the contraband, the State may dismiss the charge against the other person (but is not required to do so).

In summary, YES, you absolutely can be arrested, charged, and even convicted of a possession crime, even if the contraband is not found directly on you.  As you can see, there are a variety of factors to consider, including, but not limited to: where the contraband was found, who had control over the area, who was present, and whether the contraband was in plain view.  And, of course, any statements regarding knowledge of the presence of the contraband could be extremely detrimental, and are typically not a good idea to make.  

Every possession case is different, and if you have more questions regarding your own case, or that of a friend or loved one, you can call Wurtzel Law for a free consultation.  We can look at the facts of your specific case, as well as examine the procedures used to search for and seize the contraband, to advise you as to the options available in your particular situation.

Lori Wurtzel