As a criminal defense law firm based in Ponte Vedra Beach, Florida, we know that drug possession charges can be intimidating and confusing—especially if you weren’t physically holding the drugs when you were arrested.
One of the most common misconceptions we hear from prospective clients is this:
“How can I be charged with possession when the drugs weren’t even on me?”
It’s a fair question. And the answer lies in a legal concept known as constructive possession. In Florida, the law allows for someone to be charged with drug possession even if the drugs were not found in their hand, pocket, or bag.
If prosecutors can show that you knew about the drugs and had access to or control over them, such evidence may be enough to substantiate a drug possession charge. As a Ponte Vedra Beach drug crime lawyer, I explain how this works.
Understanding Florida Drug Possession Laws
Florida takes drug possession very seriously. Under Florida Statute § 893.13, it is illegal to possess controlled substances unless they are lawfully prescribed. But possession doesn’t always mean physically having the drug in your hand.
The law recognizes two types of possession:
- Actual possession – When the drug is physically on your person, such as in your hand, pocket, or a bag you’re carrying.
- Constructive possession – Constructive possession occurs when someone has knowledge of the presence of a controlled substance and the ability to control it, even if it’s not found directly on them, such as in a car, shared apartment, hotel room, shared safe, or deposit box.
Many people are surprised to learn that constructive possession can carry the same penalties as actual possession. That’s why understanding this legal theory is crucial if you’re facing charges.
Legal Elements of Constructive Possession in Florida
In order for the prosecution to obtain a conviction for constructive possession in Florida, they must prove all three of the following elements beyond a reasonable doubt:
- Knowledge – The defendant must have known the drugs were present. If the drugs were hidden or the defendant was unaware of their existence, this element fails.
- Control or Dominion – The defendant must have had the ability to access or control the area where the drugs were located. This doesn’t mean exclusive control—just that the defendant had the authority or ability to exercise control.
- Intent to Control – This element refers to the defendant’s intention to exercise control over the substance. The prosecution may use circumstantial evidence to try to prove intent.
In all cases when drugs are found in an area shared by multiple people, the state has a higher burden to prove that one individual had both knowledge and control over the controlled substance.
Common Scenarios Where Constructive Possession Arises
Constructive possession is often alleged in situations where drugs are discovered in a varied scenarios, including:
- Shared Vehicles – You’re driving with friends, and police find drugs under a seat. Even if the drugs aren’t yours, you may be charged if the state argues that you had access to or knowledge of them.
- Multi-Occupant Residences – Drugs found in a common area like a kitchen or bathroom in a shared apartment can lead to possession charges for any of the residents—especially if there’s circumstantial evidence linking someone to the drugs (e.g., fingerprints, paraphernalia nearby).
- Backpacks, Luggage, or Lockers – If drugs are found in a bag or container that belongs to you or is believed to be under your control, you may be charged—even if you weren’t holding it at the time.
- Traffic Stops With Multiple Passengers – Everyone in the car could be at risk if drugs are found, but the burden is on the state to prove who had actual knowledge and control over the substances.
However, these cases often rely on circumstantial evidence and can be weakened by ambiguity around ownership or access. That said, there are plenty of examples where the prosecution has applied the legal theory of contrastive possession and succeeded, including Bennett v. State of Florida.
Corey Bennett was tried and convicted of possession of marijuana, trafficking cocaine, and possession of drug paraphernalia based on circumstantial evidence that proved he had constructive possession of the drugs and drug paraphernalia.
Challenges in Proving Constructive Possession
As showcased above, prosecutors have had success in the past in proving constructive possession. However, they often struggle to prove constructive possession because proximity is not enough.
Simply being near drugs isn’t sufficient for a conviction. Florida courts have ruled time and time again that unless there is evidence of knowledge and control, the charge cannot stand. If multiple people have access to the location, the state’s case becomes even weaker.
The Culver V. State of Florida case is an excellent example where a drug trafficking charge was reversed on appeal owing to the mere fact that the prosecutor failed to present evidence linking Culver to the cocaine. The prosecutor did not prove anything beyond the fact that she was riding near the drugs while driving the car.
The law requires more than “mere presence”—it demands evidence of control and knowledge. In many cases, the evidence is purely circumstantial, which gives your defense attorney room to create reasonable doubt.
Legal Defenses to Constructive Possession Charges
At Malcolm Anthony, P.A., we explore every angle when defending a constructive possession case.
Common legal defenses include:
- Lack of Knowledge – If you didn’t know the drugs were present, you cannot be guilty of possession. This defense is often used when drugs are hidden or belong to someone else.
- Lack of Control – If you didn’t have access to the area—such as someone else’s locker, trunk, or room—you may not meet the control requirement.
- Drugs Belonged to Someone Else – If another person had actual or constructive possession, you may not be held responsible, especially if there’s no physical evidence linking you to the drugs.
- Illegal Search or Seizure – If law enforcement violated your Fourth Amendment rights by conducting an unlawful search, we can file a motion to suppress the evidence. If successful, this could result in a dismissal of charges.
These defenses aren’t theoretical. We’ve used them in real cases to get charges dropped, reduced, or diverted into treatment-focused programs.
Penalties for Drug Possession in Florida
The type of illicit drugs and the amount involved will influence the penalties imposed if you’re convicted of drug possession charges. Florida law categorizes substances into five “schedules,” with Schedule I drugs like LSD, heroin, 3,4-methylenedioxymethamphetamine (ecstasy), peyote, and methaqualone carrying the most severe penalties.
Misdemeanor Possession
Possessing less than 20 grams of marijuana (not concentrated) is typically a first-degree misdemeanor:
- Up to 1 year in jail
- Up to $1,000 in fines
- Possible license suspension
Felony Possession
Possessing more than 20 grams of marijuana is a third-degree felony. Additionally, possessing most other drugs (including cocaine, MDMA, and prescription pills without a prescription) is a third-degree felony:
- Up to 5 years in prison
- Up to $5,000 in fines
- Probation and drug counseling
- Driver’s license suspension
- Permanent criminal record
Aggravating Factors
Possession near a school, daycare, or park, or possession with intent to distribute can result in enhanced penalties—even if you weren’t holding the drugs at the time of arrest.
These consequences are life-altering. That’s why it’s so important to fight the charges early and aggressively.
Why You Need a Criminal Defense Attorney
Facing drug charges in Florida is serious—especially when constructive possession is involved. The law is complicated, the stakes are high, and the outcome depends heavily on how well your case is presented and challenged in court.
As your defense attorneys, we will:
- Challenge the prosecution’s evidence on knowledge and control
- Identify constitutional violations such as illegal searches
- Present alternative explanations that raise reasonable doubt
- Negotiate for dismissal, reduction, or diversion programs like drug court
Early legal intervention can drastically improve your outcome. The sooner we get involved, the better we can protect your rights and build a strong case.
You Don’t Have to Be Physically Holding the Drugs to Be Charged
In Florida, you don’t need to physically hold drugs to be arrested or convicted. If prosecutors believe you had knowledge and control over the substance, they can—and often do—charge you with constructive possession.
But remember: being charged is not the same as being convicted. There are many ways to challenge constructive possession allegations, especially when evidence is weak or improperly obtained.
If you’re facing drug charges in Ponte Vedra Beach, Jacksonville, or anywhere in Northeast Florida, we’re here to help. Contact Malcolm Anthony, P.A. today at (904) 285-4529 or fill out our online form to schedule your consultation.
Let’s build your defense—together.
