Criminal Defense
Since 1993
Since 1993
Drugs on the Table, But Not in Your Hand? The “Constructive Possession” Defense
By: John Guidry
How many drug possession cases in Orlando arise out of “constructive possession” situations? A lot.
As I have stated many times, constructive possession cases are tough to prove. This is especially true when the drug possession arises out of a home search where multiple people might have access.
Such was the case in Bennett v. State, 46 So. 3d 1181 (Fla. 2d DCA 2010), a case that perfectly illustrates why simply being in the room with drugs does not make you a drug trafficker.
Was contraband found near you, but not on you?
Mere presence is not proof of possession. Call John today at (407) 423-1117.
The Scenario: The Cottage Raid
It all started with Bennett being wanted on felony charges. A Tampa police officer received a tip that Bennett could be found at a certain address—specifically, a property with a main house (where his grandmother lived) and a small cottage in the rear.
- The Entry: The officer went to the rear cottage, looked through a window, and saw Bennett peeking out from the bathroom. The officer entered through the window and arrested him.
- The Discovery: In the living room and bedroom, the officer saw trafficking amounts of cocaine and cannabis in plain view.
- The Problem: No drugs were found on Bennett’s person. They were just sitting on a table.
Bennett was convicted of Trafficking in Cocaine and Possession of Marijuana based entirely on the theory that he was in constructive possession of the items in the cottage.
The Legal Breakdown: Knowledge vs. Control
At the risk of sounding like a broken record, let’s review what it takes to prove constructive possession. The State must prove two things beyond a reasonable doubt:
- Knowledge: The defendant knew the drugs were there.
- Dominion and Control: The defendant had the ability to exercise control over them.
The “Plain View” Trap It is true that a jury could conclude Bennett knew about the cocaine because it was right there on the table. But this is why constructive possession is so hard to prove: Drugs in plain view are not sufficient to prove dominion and control.
To satisfy the “control” element, the State has to prove the defendant had control over the premises (i.e., it was his house).
- The Visitor Defense: The evidence showed Bennett’s grandmother owned the property. Bennett told police he “sometimes stayed” in the cottage, but there was no proof he lived there permanently. At most, the evidence proved Bennett was a visitor.
The Ruling: Overturned
The appeals court overturned Bennett’s convictions.
Why? Because mere proximity to contraband is not enough. As the court noted in Sundin v. State, just because you are standing near a glass pipe doesn’t mean it’s yours if you are just a visitor.
Because the State couldn’t prove Bennett owned the cottage, they needed independent evidence to link him to the drugs, such as:
- Fingerprints on the bags.
- Incriminating statements (“Yeah, that’s my stuff”).
- Eyewitness testimony seeing him handle the drugs.
The State had none of that. They just had a guy in a room with drugs. That is not enough for a conviction.
John’s Takeaways
- Don’t Claim the Room: If you are staying at a friend’s house or a relative’s house and police find drugs, do not admit that you “live” there. If you are a visitor, the State has a much harder time proving you controlled the items in the room.
- Silence is Golden: Bennett’s statement that he “sometimes stayed there” didn’t help him, but it also wasn’t a full confession of residence. If he had said, “This is my spot,” the outcome might have been different.
- Plain View isn’t Possession: Police love to say, “It was right in front of him, so it must be his.” That is an assumption, not proof. We can fight that presumption in court.
Were You Just a Visitor?
If you have been charged with possession or trafficking just because you were in the wrong place at the wrong time, we need to challenge the “dominion and control” element of the State’s case.
Call me at (407) 423-1117. Let’s force them to prove it.
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.