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Defenses to a Drug Charge

Actual Possession vs. Constructive Possession

In any case regarding possession be it cocaine, cannabis or a firearm, the state must prove beyond a reasonable doubt that the accused possessed the contraband/object.  The state must prove possession via actual possession or constructive possession.

Actual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession.  Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance. Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975).

To prove constructive possession, the state must show:

  1. That the accused had knowledge of the contraband/item ;
  2. That the accused had the ability to exercise dominion and control over the contraband/item.

If the premises on which contraband is found is in joint occupancy, rather than exclusive occupancy, knowledge of the presence of the contraband on the premises and the accused’s ability to maintain control over it will not be inferred, but must be established by independent proof.  Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises. Mere proximity [emphasis added] to contraband is not sufficient to establish constructive possession. J.M. v. State, 839 So. 2d 832 (Fla. 4th DCA 2003)

To support a finding of probable cause to arrest on a constructive possession theory, the State must establish by a factual showing that the arresting officer reasonably believes the accused has dominion and control over the contraband, knows it is in his presence, and knows of its illicit nature. Mere proximity to contraband found in a public place and in the vicinity of several other people does not warrant a finding that the police officer has probable cause to believe that the person or persons closest to the contraband possesses it. McGowan v. State, 778 So. 2d 354 (Fla. 2nd DCA 2001).

In Perry v. State, 916 So. 2d 835 (Fla. 2nd DCA 2005) Perry, the defendant was the passenger in a vehicle owned and operated by a known drug dealer, defendant’s father, who was on his way to deliver two ounces of methamphetamine to a confidential informant. When law enforcement stopped the vehicle to arrest the driver, a search of the driver revealed the expected two ounces of methamphetamine. A search of the car revealed a closed black bag located between the front seats of the vehicle, which contained a digital scale and a pipe. The officers did not engage defendant in an investigative stop pursuant to Terry to determine whether he knew about the drugs or paraphernalia. Rather, without further investigation, the officers arrested defendant for constructive possession of the paraphernalia concealed within the bag. The Second District held that the officers lacked probable cause to arrest defendant for constructive possession of paraphernalia. It held that Pringle did not permit the arrest of all persons within a car any time a valid search of the car reveals drugs or other contraband.

This decision arose out of United States Supreme Court precedent requiring some type of individualized suspicion to support probable cause to arrest one person found in a group of people, one or more of whom are suspected of some criminal wrongdoing. See United States v. Di Re, 332 U.S. 581 (1948); see also Ybarra v. Illinois, 444 U.S. 85 (1979) (“[a] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. . . . Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.”).

In Robinson v. State, 975 So. 2d 593 (Fla. 2d DCA 2008), officers executed a search warrant on a home occupied by the defendant, his girlfriend, and her two children. The officers found illegal drugs in the hollowed-out bottom of a miniature ceramic house sitting on the kitchen counter. The drugs were concealed from the open view of anyone merely looking at the ceramic house.  The court held that because the State’s evidence did not prove Mr. Robinson knew the concealed drugs were present, they found that there was insufficient evidence to demonstrate he constructively possessed the drugs and reversed his convictions for possession of cocaine and marijuana.

For more information concerning possession and the possible defenses that you might have, please contact David J. Sobel directly at 954-383-3000.



Aggressive Law Enforcement Tactics or Entrapment

There is a very fine line between encouragements on the part of law enforcement to engage in criminal activity and entrapment.  The Supreme Court in Sorrells v. United States, stated that, “It is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of it the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it.[1]

The application of the entrapment defense is a way for society to deter law enforcement from both targeting the innocent citizen as well as using utilizing unlawful policing techniques.  As a general rule, entrapment is a complete defense to a criminal charge, on the theory that “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute[2].”

There are two different theories on entrapment.  The first is the subjective theory.  This theory focuses mainly on the alleged defendant and whether the defendant would have committed the crime if the government had not engaged them.  A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct[3].  Law enforcement officials commit entrapment only when it is determined that they have implanted the idea to commit a criminal act in the mind of an innocent person.  The use of the entrapment defense is irrelevant if the government simply afforded the prospect the opportunity to commit the crime.  For the government to entrap a defendant, the individual must prove that they lacked a predisposition to commit the crime in the absence of the government conduct and that the government must also create a motivation for the defendant to commit the crime.

The second theory on entrapment is the objective theory.  This focuses on the conduct of the law enforcement rather than the conduct of the defendant.  A succinct explanation of this theory is found in the Model Penal Code, “entrapment occurs when a police agent

“encourages another person to commit an offense by … employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.[4]”  This theory of entrapment focuses on the methods that law enforcement use rather than the defendant who had been persuaded to commit the crime, the predisposition of a defendant is irrelevant[5].

The objective theory can be seen as an effort on the part of the courts that adopt it as a method of controlling police conduct.  This check on law enforcement is valuable to the community as a whole.  It protects not just the criminals but the average law abiding person.  Placing a check on the powers of the police like the objective theory is an effective method of preventing abuse and outrageous conduct.

Florida Entrapment Law

The Florida Supreme Court decided the case of State v Dickinson in an attempt to clarify the states position on entrapment law.  In that case, the Florida Supreme Court acknowledged the “subjective” theory on entrapment as the prevailing theory under Florida law[6].  The court stated that, “The essential element of the defense of entrapment is the absence of a predisposition of the defendant to commit the offense. The entrapment defense prohibits law enforcement officers from instigating a criminal act by persons otherwise innocent in order to lure them to its commission and to punish them. If the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.[7]

Pursuant to Florida law, a defendant’s predisposition, as required under the subjective theory for entrapment, is irrelevant when determining if law enforcement violated a defendant’s due process rights.  Alternatively, the emphasis is on the conduct of law enforcement. “     For example, applying the due process analysis, the Florida Supreme Court has held that an agreement to pay an informant a contingency fee conditioned on his cooperation and testimony in criminal prosecutions violated the defendant’s due process rights[8]. “The due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions[9].”

The Florida Supreme Court was presented with such a case in State v Glosson[10].  There as a result of a reverse sting operation the defendant was charged with trafficking in and conspiring to traffic in cannabis.  The sting was conducted through a paid informant. For the informant’s services in this and other sting operations, the State agreed to pay the informant ten percent of all civil forfeiture proceedings resulting from any case the informant initiated.

The Florida Supreme Court held that the contingent fee agreement between the State and its informant violated respondents’ due process rights under the Florida Constitution, Article I, Section 9[11].  The Supreme Court reasoned that “the informant here had an enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee.[12]”  The court found that Glosson’s due process rights were violated to the extent that dismissal of the charges were warranted.  The court stated that:

“We can imagine few situations with more potential for abuse of a defendant’s due process right. The informant here had an enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee. The due process rights of all citizens require us to forbid criminal prosecutions based upon the defense.[13]

The fact that the police were paying the informant a substantial amount of money went against all notions of a fair trial.  It was a situation that was ripe for abuse and could prevent the defendant from receiving a fair trial.  Further, the informant had a motivation to make the cases larger due to his contingency fee agreement.

In State v Williams, the Broward Sheriff’s Office recovered a large amount of power cocaine.  Instead of destroying the cocaine as is standard procedure, the cocaine was sent to a police laboratory where Sheriff’s chemists cooked the cocaine and converted it into the highly addictive and illegal narcotic crack cocaine.  The sheriff’s office would use this crack to conduct sting operations.  Leon Williams was arrested as a result of a reverse sting operation for purchasing crack cocaine within 1000 feet of a school.  The Florida Supreme Court stated that the actions of the Broward Sheriff’s Office violated the defendant’s due process rights by “cooking” up their own crack cocaine[14].

In barring the prosecution of Williams in this case, the court stated that “The illegal manufacture of crack cocaine by law enforcement officials violates the court’s sense of justice and fairness[15].”  The court was also troubled by the fact that a substantial amount of the crack rock that the Sheriff’s office cooked up that was lost during various reverse sting operations.  “In this case, the State conceded at oral argument that some of the crack cocaine was lost during the reverse-sting operations. This fact is particularly outrageous considering that the police conducted the reverse-sting operation within one thousand feet of a high school. This lack of strict inventory control over the crack cocaine resulted in an undetermined amount of the dangerous drug escaping into the community. We find that this is an anomalous consequence inasmuch as the Sheriff is responsible for protecting the community.[16]

The Broward Sheriff’s Office was creating more of the highly addictive crack cocaine and putting it back into the community that they were supposed to be protecting.  The Sheriff’s Office was engaging in an activity that they as a law enforcement agency were supposed to prevent.  If the chemist had not been wearing a badge and operating under the title of Deputy Sheriff, then their actions would have been criminal.  Drugs like crack have tremendous amounts of ancillary crimes that are committed in an attempt to procure and to control crack.  Robberies could have been committed to purchase this new crack, violent crimes could have and probably were committed in an effort to control the crack trade, and etc.  It is impossible to determine how many crimes, were committed with and for the crack cocaine that the Sheriff’s Office produced, but any crime that was committed due to the crack that was placed in the community by the Sheriff’s Office is unacceptable.

The courts and law enforcement must be able to distinguish between a true criminal who was caught due to good police work and the innocent citizen who was caught up in a governments trap.  Justice Brandeis warned of this stating, “The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the Government; that the act for which the Government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission. The Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature.[17]

[1] Sorrells v. United States, 287 U.S. 435,444-445 (U.S. 1932)

[2] Jacobson v. United States, 503 U.S. 540, 548 (1992)

[3] Mathews v. United States, 485 U.S. 58, 63 (1988).

[4] American Law Institute, Model Penal Code § 2.13

[5] Cruz v. State, 465 So. 2d 516, 521 (Fla. 1985)

[6] State v. Dickinson, 370 So. 2d 762, 763 (Fla. 1979)

[7] Id.

[8] Glosson v State, 462 So. 2d 1082, 1084 (Fla. 1985).

[9] Id. at 1085

[10] Id. at 1082

[11] Id. at 1085

[12] Id. at 1085

[13] Id. at 1085

[14] Id. at 467

[15] State v. Williams, 623 So. 2d 462 (Fla. 1993)

[16] Id. at 467 (Fla. 1993)

[17] Casey v. United States, 276 U.S. 413, 421-25 (1928)