How many of you out there having had a shady friend at one time or another? None of you? I find that hard to believe. Let me share first.
I know a girl that is a habitual cheater, but its the way in which she ‘hooks up’ that adds insult to injury. She will call her girlfriend on speaker phone just so that her current boyfriend hears the girlfriend’s voice. After the phone is taken off speaker, the girlfriend on the other line places a three-way call to her “man on the side”. Thus, she makes her rendezvous plans right in front of her boyfriend under the guise of planning to hang with her girlfriend. Women.
And, there’s also those shady friends who are criminal. What, you don’t have a friend in Orlando that smokes weed (possession of cannabis charge, technically)? That sells weed (sale and delivery charge, technically)? How about a friend that offers you a hydrocodone pill to ease your pain (possession of prescription drug, delivery, etc)? Well, for those that do have such friends, what happens when you’re hanging out and the police close in. What now?
This unfortunate scenario has happened quite a few times here in Orlando. Today’s real life example comes from the case of Byers v. State of Florida. 17 So.3d 825 (Fla. 2nd DCA 2009). Byers was convicted of trafficking in a controlled substance (methamphetamine) and carrying a concealed weapon. He went to a jury trial, and lost. On appeal, he argued what most folks argue on appeal–that the trial court should have thrown the case out for lack of evidence.
Here’s how it went down. Police responded to a motel. Byers was standing outside one of the rooms. For no apparent reason, the police approached Byers and asked if he had any weapons. He stated yes, as his front pocket contained a pair of brass knuckles. Kind of old school, but still enough for these cops to arrest Byers on the spot for carrying a concealed weapon.
After arresting Byers, the police entered the motel room (how is that legal?) and found Byers’ friend, Gutierrez, taking a bong hit. I guess the police were kind enough to allow Gutierrez to hold in his entire hit, before arresting him. A further search by these cops of Byers’ car revealed a backpack full of methamphetamine. A trafficking amount, to be exact. And, that’s where Byers got his trafficking charge.
When confronted with the drugs, Byers admitted that he knew the backpack in his car contained a lot of drugs, but he insisted that the backpack wasn’t his–it was Gutierrez’s. Basically, Byers explained that he drove Gutierrez to the motel so that Gutierrez could do a drug deal, and at the end of the drug deal Gutierrez was going to break a piece off to Byers as a way of saying thanks, bro.
Now we’re back to discussing the same sort of drug possession issues that we love so dearly. Constructive possession vs. actual possession. As you know from reading this website, actual possession is pretty simple. But our case involves constructive possession, because the backpack full of drugs was not in the actual possession of either Byers or Gutierrez. When drugs are found in a place occupied by two or more people–you’ve got constructive possession.
Was Byers’ admission that he knew drugs were in the backpack enough to convict? No. Why? Knowledge is but one element of constructive possession. The next step requires proof of “dominion and control”. Did the state ever prove Byers had dominion and control of the backpack? The court said no, and they overturned Byers convictions, reasoning that “the evidence established that Byers knew the methamphetamine was in the car he drove to the motel, that he knew Gutierrez intended to sell the methamphetamine, and that he agreed to drive Gutierrez to the motel in exchange for a small amount of the drug. Even if proof of these circumstances permitted an inference that Byers had control over the methamphetamine, it does not exclude Byers’ reasonable hypothesis of innocence that the drugs in the backpack belonged exclusively to Gutierrez. Because the State did not meet its burden to establish Byers’ dominion and control over the drugs, and thus did not establish constructive possession, we revers Byers’ conviction and sentence for trafficking in methamphetamine.” id at 828.
You see, the Byers case gently reminds us that someone out there really does understand what “dominion and control” means. How many of you defense attorneys out there could have taken Byers’ story to the prosecutor, explaining to him that they can’t establish dominion and control? How many prosecutors would have dropped this? Not many, unfortunately. But, there’s a few good men/women out there. I still have faith.