Felony Drug Charges & Arrest

Defending Your Felony Drug Charge

Understanding Actual Possession vs. Constructive Possession

The most important thing to keep in mind when dealing with drug possession charges in Florida is an understanding that ownership of the substance has little to no bearing on the question of possession. Florida’s criminal drug laws do not take into account whether the drugs actually belonged to you or another person. All the law concerns itself with is whether you were in possession of the item. For purposes of Florida law, possession can be one of two types: actual or constructive.

Actual Possession refers to a situation where an individual has an illegal drug on their person. For example, someone who has a baggie containing cocaine in their pocket would be in actual possession of the cocaine. On the other hand, a person can also be in constructive possession of a drug.

Constructive Possession refers to a situation where a person has knowledge of the illegal drug and the ability to access this contraband.

Consider the following scenario:

A person is stopped while riding as a passenger in a friend’s car. A search of the vehicle by a police officer reveals cocaine in the glove box. Despite the fact that the passenger wasn’t holding the cocaine, Florida law still permits the prosecutor to pursue a conviction of the passenger for possession of cocaine. This legal concept is commonly referred to as having the ability to exercise “dominion and control” over the contraband. In other words, if the Pinellas County State Prosecutor can prove that the passenger had knowledge of the cocaine’s whereabouts in the vehicle and the ability to access the drug, then a conviction for felony possession could result… even though the controlled substance belonged to the driver.

How We Can Fight a Felony Drug Possession Charge – Possible Defenses:

Early Intervention with the Prosecutor
Simply because you were arrested for a particular felony drug / narcotics offense, does not mean that the Pinellas County State Attorney’s Office has to file the charge against you. At times, early intervention by an St. Petersburg / Clearwater lawyer in providing the prosecutor with your side of the story, or names of your witnesses, can be effective. This pre-filing action could make a difference in the prosecutor’s decision whether to file a formal charge, file a lesser offense, or decline to prosecute you at all.

Illegal Search and Seizure
Drug possession arrests commonly stem from a search conducted by law enforcement. Therefore, a threshold issue to consider is whether the initial stop and subsequent search were lawful.

If the initial stop or subsequent search was illegal, the drugs seized will become inadmissible as evidence in court. This legal concept is often referred to as the “fruit of the poisonous tree” doctrine. The idea is that, if the search is illegal (i.e. the tree is poisoned), all the evidence flowing from the search is tainted (i.e., the fruit is also poisoned) and cannot be used in court. A skilled and experienced Pinellas County criminal defense lawyer can examine your case to evaluate the lawfulness of any search conducted by law enforcement. If the initial stop or subsequent search is suspect, a motion can then be filled to exclude or suppress the evidence that flowed from the unlawful conduct on the part of the police. Winning such a motion can be highly beneficial, as it typically results in preventing the prosecutor from effectively moving forward with his case. The simple filing of a motion and supporting memorandum of law that raises significant legal questions may also be an effective bargaining chip in securing lesser penalties or reduced charges.

Attacking the State’s Constructive Possession Theory
A common method of attacking a drug possession charge in constructive possession cases is to look closely at the issues surrounding knowledge, as well as, dominion and control. In some cases, the evidence available to the prosecutor to show that you knew of the drugs and had access to it may be weak or even nonexistent. For example, consider drug charges where cocaine is found in the center console of a vehicle in which you were a passenger. An experienced attorney could argue on your behalf that the State may be unable to show that you knew the cocaine was in the car. Likewise, that since you did not own the vehicle, you did not have access to the drug or the ability to exercise dominion or control of it in its found location. Your attorney would be able to rely on a long line of appellate cases which stand for just this proposition.

Other Defenses – Credibility, Chain of Custody & Lab Results
The Florida Rules of Criminal Procedure permit your attorney to conduct depositions of all state witnesses and authorize your lawyer to examine any evidence. Depositions may reveal weaknesses or holes in the state’s case that might present other viable defenses to your felony drug possession charge. For example, your attorney can look into questions concerning the procedures used by the crime lab in testing the substance to determine its true nature, chain of custody issues, the truthfulness and veracity of any witnesses who might be involved, and the extent of law enforcement personnel’s training and experience in investigating your drug case. In some cases it may be beneficial to hire an independent expert to reweigh the controlled substance or illegal drug to determine if the weight that is alleged by the prosecutor is accurate. In these cases, the exact quantity of the drug may have a bearing on whether the State can pursue a drug trafficking charge or is limited to a lesser offense.  Your lawyer’s investigation in these areas can sometimes be productive and lead to an effective defense strategy in your case.