By: John Guidry
Please permit me to break off a piece of wisdom to anyone driving around Central Florida with drugs in their car: Try not to drive like a jerk. That’s right. I’ve defended a zillion drug cases in Orlando that started with a simple traffic citation.
- The Question: Why blow through a stop sign with a trunk load of contraband? Why drag race when you have several hundred illegal pills in your pocket?
- The Answer: As Timothy B. Schmit likes to sing, “I can’t tell you why.”
The real-life example is Williams v. State, 110 So. 3d 59 (Fla. 2d DCA 2013). It perfectly illustrates the equation: Idiot Driving = Drug Charge.
Did the police charge you for drugs found in a car you were just riding in?
Proximity is not possession. Call John today at (407) 423-1117.
The Case: Williams v. State
Ms. Williams was speeding and driving recklessly in a rental car with two passengers. Tampa police pulled her over. She became extremely nervous—so nervous they offered her an EMT. Officers smelled marijuana. Inside a black bag in the car, they found a pound of fresh marijuana, crack cocaine, and digital scales.
Just like that, a speeding ticket turned into charges for trafficking and intent to sell. The State’s theory was simple: she was the driver, she rented the car, and she smelled the weed, so the drugs must have been hers.
Constructive Possession and Joint Occupancy
The appeals court threw out the conviction because the State failed to prove dominion and control. When a vehicle is occupied by more than one person, the State cannot simply assume the driver owns everything inside it. Prosecutors need independent proof. There were no fingerprints on the bag, and no one admitted that the bag belonged to Ms. Williams. Mere proximity to drugs cannot prove dominion and control.
The court noted that assuming a driver owns every container in a car would amount to unconstitutional strict liability.
The Odor Problem: Burnt Versus Fresh Marijuana
- Burnt cannabis: The smell may suggest a completed act, but courts have often allowed officers to use it to justify a search.
- Fresh marijuana: Police may argue that the smell suggests continuing possession and permits a wider search.
- Unspecified odor: Problems arise when an officer cannot distinguish the source but searches anyway.
The Hemp Defense and Modern Vehicle Searches
Legal hemp and illegal cannabis can smell the same. That makes odor-only searches more complicated than they once were. Police may need additional facts—such as signs of impairment or visible contraband—to establish probable cause. If officers searched your vehicle solely because of an odor, the legality of that search should be examined carefully.
Traffic stops also deserve careful scrutiny. A minor driving violation may be used as a pretext to investigate something else, and the consequences can be severe once a vehicle search begins.
Modern Evidence: Touch DNA
In older cases, the absence of fingerprints could be important. Today, investigators may rely on touch DNA. Even then, DNA on a zipper or container does not always prove ownership or knowing possession. A defense may need to examine secondary transfer and the circumstances under which the object was handled.
Don’t Drive a Mobile Pharmacy
If you are renting a car, check under the seats before driving away. If you are driving friends, know what they are carrying. You do not want to face a serious sentence for a bag that was not yours.
Call John Guidry at (407) 423-1117 to discuss constructive possession and vehicle-search defenses.