Controlled Substances – What Defines Possession?

Under Florida law, possession of a controlled substance, such as marijuana, is defined as the ability to exercise the right of ownership, management, or control over the thing possessed. Possession may be “actual” or “constructive” in nature. See Section 893.13(6), Florida Statutes.

For purposes of this explanation, we are going to use marijuana as an example.

Actual Possession means that the marijuana is actually in the hand or in a container in the hand of the person accused, or is close enough to be within reaching distance and under the control of the person accused. Just being in the same proximity of the marijuana is not enough to establish control over the marijuana, when the marijuana is not in a place over which the person accused has control.

Constructive Possession means that the marijuana is in a place where the person accused has control, or where the person accused has concealed it. In the case of proving constructive possession, the prosecution must establish that the accused person had control over the marijuana, and the accused person had knowledge that the marijuana was within the accused person’s presence.

If an accused person has exclusive possession of the marijuana, knowledge of its presence may be inferred or assumed. If an accused person does not have exclusive possession of the marijuana, knowledge of its presence may not be inferred or assumed.

What happens when two or more people are accused of “joint possession” of the marijuana? In this type of case, each of those accused persons is considered to be in possession of the marijuana. If a person has exclusive possession of the marijuana, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of the marijuana, knowledge of its presence may not be inferred or assumed.