The “Drug Sandwich”: Why Jury Instructions Matter When Police Raid Your Home

By: John Guidry

Home search warrants are no fun. It is a lose/lose proposition. Citizens whose homes have been invaded by government officials find they have hours of cleanup to do. Dresser drawers emptied. Strangers fondling underwear. Kitchen cabinets in disarray.

• The Damage: Even with no drugs found, the invasion of privacy is creepy and permanent.

The “Drug Sandwich” Phenomenon When drugs are found, the police have to decide who to charge.

• The Magic Trick: Much to my amusement, police miraculously find baggies of drugs “sandwiched” between the Defendant’s passport and a utility bill.
• The Goal: They create these “drug sandwiches” to leave little doubt about ownership. The only thing more amazing than these tall tales is that judges continue to believe them.

Did police find drugs in a house you share with others?

You have a “Joint Occupancy” defense. Call John today at (407) 423-1117.

The Case: Mitchell v. State (The Crying Girlfriend)

The case of Mitchell v. State, 958 So. 2d 496 (Fla. 4th DCA 2007), highlights the battle between Actual and Constructive possession.

• The Entry: Police responded to a 911 hang-up. Mitchell stepped outside. Officers heard a woman crying inside and entered to check on her.
• The Find: Inside, they saw marijuana in plain view. They got a warrant and found Cocaine, $29,000 cash, and drugs in every room.
• The “Evidence”: They found male and female clothing, plus the classic “court event form with Mitchell’s name on it next to a digital scale and razor blade.” (A close cousin to the drug sandwich).
• The Betrayal: The crying girlfriend blamed everything on Mitchell to save her own skin (and her kid).

The Trial: The State argued this was Actual Possession because the drugs were in plain view. Mitchell’s attorney argued it was Constructive Possession because Mitchell was outside when the drugs were found, and the home was jointly occupied.

The Fight: The Special Jury Instruction

At trial, Mitchell’s lawyer asked for a Special Jury Instruction.

• The Law: In a “Joint Occupancy” situation (roommates/girlfriends), knowledge of the drugs cannot be inferred. The State must prove knowledge by independent proof (fingerprints, admissions, etc.).
• The Error: The Trial Judge refused to read this instruction to the jury. The jury convicted Mitchell, and he got 20 Years in Prison.

The Ruling: The Appeals Court reversed the conviction.

• The Logic: Because Mitchell was removed from the home before the search, the drugs were not within his “ready reach.” Therefore, it was a Constructive Possession case.
• The Impact: The jury needed to know that they couldn’t just assume the drugs were his because he lived there. By refusing the instruction, the Judge denied Mitchell a fair trial.

John’s 2026 Update: Smart Homes & Touch DNA

Note: In 2007, Mitchell won because the jury wasn’t told about “Joint Occupancy.” In 2026, technology often renders that argument moot.

1. Touch DNA (The End of the “Sandwich”) In Mitchell, police relied on finding a document next to the drugs to prove ownership.

• The 2026 Reality: Police now use Rapid Touch DNA. They swab the zipper of the backpack or the knot on the baggie.
• The Result: If your skin cells are on the baggie, the State argues Actual Possession (you touched it). They don’t need a “constructive” theory anymore, and the Mitchell jury instruction won’t save you.

2. Smart Home “Occupancy” Logs Proving who “lived” in a room used to be a battle of utility bills.

• The New Evidence: Police subpoena Smart Lock and Nest/Ring camera logs.
• The Trap: If the digital log shows your unique code unlocked the bedroom door at 2:00 AM, they prove you had “Exclusive Dominion” over that room at that specific time, defeating the “Joint Occupancy” defense.

3. Voice Assistant “Knowledge” Constructive possession requires proof of Knowledge.

• The 2026 Tactic: Police pull recordings from Alexa or Google Home.
• The Smoking Gun: If the device recorded a voice saying, “Where did you put the scale?”, voice biometrics can identify the speaker. This proves Actual Knowledge without a confession.

Don’t Let Them Confuse the Jury

Getting the case to the jury is only half the battle. Ensuring the jury follows the correct law is just as important. If the Judge reads the wrong instructions, innocent people go to prison.

Call me at (407) 423-1117. Let’s draft the instructions.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.