As a criminal law attorney in Fort Lauderdale, I have many friends who ask me, “Can the police arrest me if I am riding in a vehicle that contains marijuana?” Although you should never ride in a vehicle that contains marijuana, you can reduce your chances of being arrested by understanding the significance of the legal concept “constructive possession.” The Fourth D.C.A. of Florida recently wrote an excellent analysis on constructive possession in Brinkley v. State, 12 So.3d 311 (Fla. 4th D.C.A., 2009).
To be convicted under Florida Statute 893.13 (Possession of a Controlled Substance), the State must prove beyond a reasonable doubt that you possessed and had knowledge of the marijuana. To possess means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession is a simple concept – in your hand, in a container in your hand, on your person, or within ready reach and in your control. If a person has exclusive possession of a controlled substance, knowledge is inferred. Issues of constructive possession are more complicated, however.
To establish constructive possession of marijuana, the State must prove that you had (1) dominion and control over the marijuana, (2) knowledge that the marijuana was within your presence, and (3) knowledge of the illicit nature of the marijuana. The most common issue in contention is whether you had dominion and control over the marijuana. If the vehicle in which the marijuana is found is in joint (no pun intended), rather than your exclusive possession (i.e. you’re the passenger in a vehicle), knowledge of the presence of the controlled substance in the vehicle and your ability to maintain control over the controlled substance will not be inferred.
In laymen’s terms, if you were foolish enough to be caught riding in a vehicle where a bag of marijuana was placed in plain view in the center console, the State would still have to prove that you had “control” over the marijuana, and not simply “knowledge” of the marijuana. Although not specifically defined, control is the ability to take, use, own, (or smoke) the marijuana without receiving permission from someone else. Mere proximity to the marijuana is not enough to establish control when the marijuana is not in your exclusive control. Possession may be joint (two or more people may exercise control of the cannabis) but only if both individuals have control over the marijuana.
To prove dominion and control, the police will have to observe you possessing, concealing, or inhaling the marijuana or if you make any incriminating statements admitting ownership of the marijuana. Notwithstanding the aforementioned reasons, the police cannot impute the ownership of the marijuana to you simply because you are in a vehicle that contains marijuana. Therefore, never make any incriminating statements to the police with regards to ownership of the marijuana. No matter what the police promise you (i.e. we won’t arrest you if you admit ownership), do not admit ownership of the marijuana. Also, try to remain calm – do not make any furtive or quick movements that would lead the police that you are nervous or trying to conceal the marijuana. Also, do not smoke the marijuana in the vehicle. It is oftentimes difficult to deny ownership when you and the vehicle reek of marijuana.
On an aside, in the event you still choose to ride in a vehicle which contains marijuana, make sure the marijuana is hidden (outside of plain view), preferably in the trunk or locked compartment. At a minimum, do not leave the marijuana in plain view in the center console or ashtray. Additionally, do not keep any paraphernalia (pipe, rolling papers, etc.) on your person.
Finally, although the police shouldn’t arrest you for possession of a controlled substance if they cannot show actual or constructive possession, it doesn’t mean that the police won’t arrest you anyways. The police routinely arrest car loads of college students where marijuana is located within a vehicle, even when they cannot pinpoint who exhibited dominion and control. At that point, it is crucial to contact an experience criminal defense attorney to analyze the specific facts of your case and file the appropriate Motions. Possession of even 1 gram of marijuana is punishable by up to one year in jail and/or 12 months probation and a possible two year driver’s license suspension. Do not plea out your case without speaking to an experienced criminal defense attorney.