Skip to Content
South Florida Criminal Attorney
Free Case Evaluation 305-504-6655 | 305-542-9491

Constructive Possession: The Importance Of Remaining Silent

Aggressive Trial Attorney With a Reputation for Success

There are two ways that you can be charged with possessing any controlled substance in the State of Florida. The first way is by actual possession, meaning that the substance is on your person. For instance, if you have a baggie of marijuana in your pocket, you are in actual possession of the marijuana.

Constructive possession is when the drug is in proximity to you but no on your person. Usually, there are other people around and only one baggie of marijuana or cocaine present. All those present can be charged with possession if they are in a position to exercise dominion over the substance (close enough to reach it, so to speak) AND they have knowledge of the substance’s presence.

Case in point, you are a passenger in a car with three other people. Driver gets pulled over for speeding. Upon getting pulled over, the cop says that the car smells like marijuana. Under Florida law, the smell alone gives an officer cause to search the entirety of a vehicle.

Since it is required that the state prove that you knew of the substance’s existence, people get into trouble when they admit to police that they were aware that the substance was in the car. That, coupled with the fact that you are within reach of the substance, will result in your being charged with possession of that substance.

The important thing to always remember is that you never have to speak with police. If you are in a situation where you are pulled over, you are in the company of others, and there are drugs present, do not tell the officer that you were aware of the drug’s existence otherwise you will be charged with possession. It is better to politely invoke your right to remain silent and say nothing. You may still be arrested simply for being there but the state will have a very difficult time prosecuting you as they cannot affirmatively prove that you knew of the substance’s existence.

Eric Matheny is a criminal defense attorney representing clients charged with drug possession, sale, and trafficking, in Miami-Dade County and Broward County.