Have you ever met that perfect couple? You know, the couple that causes bad thoughts to pop in your brain, like, “can anyone really be that happy?” They must be hiding something, right? If you’ve ever tried meditating, then you know how many random thoughts are popping in and out of existence at any given moment. It’s tough to control sometimes.
And, I also can’t control that wave of joy that washes over me when I discover that the perfect couple is not, in fact, so perfect. Again, these feelings just happen. In German, the word for taking joy from someone else’s failure is “Schadenfreude.”
When the perfect couple breaks up, everybody wants to know the reason. The simpler, the better. We want a one-word explanation, if possible. She “cheated”. He “abused” me. She’s a “narcissist.”
The problem is, reducing a complex situation to one word isn’t accurate, or helpful.
There’s nothing more annoying than watching some talk show host demand, “Give me one reason why I should vote for your candidate.” Really, one reason? When a judge asks “Give me one reason why I should not send your client to prison,” I’m ready with an answer that will keep my client out of prison–a better answer than what the judge expects from such an unreasonable question.
One of the many things I’ve begun to question after 26 years of defending criminal cases are the tiny convenient “facts” the police pepper throughout their arrest reports. Yes, I’m using air quotes around “facts”. The case we’re going to discuss today is a prime example.
The police received an anonymous tip that drugs were being sold at Rondre Thomas’ home. These tips aren’t worth much unless the police actually verify the tip. And, that’s what they did, they surveilled his house and what they witnessed gave the police enough ammunition to obtain a home search warrant. Rondre Thomas v. State of Florida. 44 Fla. L. Weekly D 1263 (Fla. 2d DCA 2019).
A search of Rondre’s bedroom uncovered enough heroin and cocaine to charge him with possession of heroin with intent to sell or deliver and possession of cocaine with intent to sell or deliver.
You might be saying to yourself, how did the police know the bedroom full of drugs was Rondre’s? Well, this is where those convenient “facts” come into play.
First, a prescription pill bottle with Rondre’s name was found right next to the drugs. Yes, it is mighty convenient that every time police find drugs they miraculously discover something with a person’s name on it nearby. Cops have been performing this trick for years so you would think that the judges would have caught on by now. But then again, I still don’t know how magicians saw a lady in half. And, have you seen that trick with blood? Yikes, its like a magical Gwar concert.
I know what you’re thinking–isn’t it possible that drug dealers remove all their picture ID’s from their wallet and place them atop each of their drug stashes? Hum. Now, when a suspect still has his wallet, anything with the suspected dealer’s name on it miraculously lands right on the drugs in question. Could be a piece of mail. Could be a credit card. In Rondre’s case, a prescription bottle.
Second, the police found several empty shoe boxes full of size 8.5 men’s shoes. This is the same size shoe that Rondre was wearing when he was arrested after the search. Third, a box of brand new (shrink-wrapped) CDs was discovered, all of which had Rondre’s picture on them, and this makes sense because Rondre is a recording artist. Fourth, there were pictures scattered throughout the bedroom of Rondre and a woman.
Fifth, a shirt was found in the bedroom that had Rondre’s picture on it, and there were some women’s clothing and shoes as well (a jointly occupied bedroom could spell trouble for the state’s case, I’m just foreshadowing here).
And finally, paperwork listing a future court date for Rondre was found in this bedroom. I’m surprised the drugs were not found wrapped in Rondre’s court paperwork. It would have been a nice touch.
Yes, the title of this article gives away the ending. Both of Rondre’s intent to sell or deliver charges were thrown out. Dismissed.
How did this happen?
Well, we know this is Rondre’s bedroom. And, we know drugs were found there. But, are we criminally libel for everything found in our bedroom? The prosecutor thought so because the case went to a jury trial and the prosecutor argued that “everything contained within that room that’s identifiable, identifies back to Rondre Thomas.”
Not so fast, Mr. Law & Order. Rondre had his mom testify, and she explained that she and her six children live in that home together. She further explained that everyone has access to that bedroom, including Rondre’s girlfriend.
Basically, mom blew up the state’s case. Florida law says that, because Rondre never had this heroin or cocaine in his pocket–and because multiple people had access to Rondre’s bedroom–the state needed to prove “constructive” possession of the drugs (as opposed to “actual” possession, which would be something like possessing drugs in your pocket or hand, for example). Proving “constructive” possession of a drug is about 60.75 times harder than proving “actual” possession.
To prove “actual” possession takes five seconds. An officer can simply say “I found cocaine in his front pocket.” Bam. Done. Guilty.
But to prove “constructive” possession, the state’s got to work for it. They’ve got to prove that Rondre had some connection to these drugs. Technically, dominion and control over the drugs. Entire chapters of boring books are written about these two words–sometimes the state can only prove “dominion” but not “control”, or vice-versa.
To prove dominion and control the state must present independent proof linking Rondre to the drugs. There are four ways to do this: “ through a defendant’s own statements,  witness testimony,  scientific evidence, or  incriminating circumstances other than mere proximity to the contraband.” id. at 5.
The title of this article claims that I will show you how to beat a charge like this. Forcing the state to link Rondre to the drugs via the four factors listed above starts with a showing that Rondre was not the only person who had access to the drugs. In this case, that showing was easy. Mom testified that all six of her kids, and Rondre’s girlfriend, had access to that bedroom.
Now that we’ve established multiple people could have accessed the drugs, we’re going to apply the above factors to Rondre’s case.
- Was the state able to link Rondre to the drugs “through [his] own statements“? If Rondre said, “Excuse me Mr. Officer, that heroin and cocaine is for my personal use, I don’t deal drugs.” A statement like that would prove constructive possession. Guilty. Done. But, Rondre never said any such thing.
- Can the state present “witness testimony” linking Rondre to the drugs? For example, if one of Rondre’s five siblings told the cops “Yea, I’m sick of Rondre stashing drugs in our house, I saw him with these drugs and asked him to flush them down the toilet–but he refused, so he deserves what’s coming.” Yes, this witness testimony would be enough to prove constructive possession.
- Finally, the state could have presented “scientific evidence.” This is the one that surprises me every single time. The government has all the money and laboratories and gas chromatographs and mass spectrometers–but they rarely bring such evidence. Even something old school, like fingerprints from the baggies containing the cocaine–this basic sort of scientific evidence may have been enough to link Rondre to the drugs found in his bedroom.
And there you have it. Even though the prosecutor thought they had a case, even though the judge let this case go to a jury, and even though the jury found Rondre guilty–the appellate court threw out everything because there never was enough evidence. Constructive possession isn’t a new concept, someone should have stuck a fork in this case long before jury selection.