An essential element of any possession of marijuana charge in Miami-Dade or Broward is that the prosecution must be able to prove beyond a reasonable doubt that you knew that the substance was in your possession.
As I have explained in earlier posts, possession may be actual or constructive. You may be charged with having a substance on your person or near you. Constructive possession requires proof that you not only knew of the substance’s presence, but you were close enough to it to exercise control over it.
Knowledge, like intent, can be proven circumstantially. If an item is found in your pocket, it is much more likely that you knew it was there. Even if you make no statements to the police indicating that you knew that there was a baggie of marijuana in your pocket, the mere fact that it was found in your pocket may be able to prove knowledge.
If you are in a car and there is marijuana in the center console, if you make no statements indicating that you knew the marijuana was present, the state must be able to prove that you somehow knew it was there. If you make no statements, it makes the state’s job that much harder.
In this situation - since most marijuana arrests come by way of a traffic stop - a couple of factors may help or hurt the state’s case. Is the car yours? If you own the car it is more likely that you know, or should know, what is in your own car. Are other people present in the car? If other people are present, it is more likely that somebody else could have placed the marijuana in your console. If you are the only person in the car, it is less likely.
You can see how fact-specific proof of knowledge can be.
Eric Matheny is a Miami marijuana possession lawyer and a Broward marijuana possession lawyer.