Is “Touching” the Same as “Possessing” in a Drug Case?

By: John Guidry

A common problem with drug possession cases these days involves a situation we see all the time: drugs are found in a room or a car with several people around. This is what we call Constructive Possession.

How do Orlando police decide who to charge? Too often, they just arrest everyone and let the courts sort it out. It requires actual, good ‘ol fashioned police work to determine who the drugs really belong to—the kind of investigation we frankly don’t see enough of anymore.

While lazy police work keeps defense attorneys like me in business, we all suffer when the government cuts corners. But here is the good news: just because you touched it, or just because you were standing next to it, doesn’t mean the State can prove you “possessed” it.

Caught in a “wrong place, wrong time” drug arrest?

Call John today at (407) 423-1117. We know how to challenge the State’s evidence.

The Legal Breakdown: Roberts v. State

To prove possession when multiple people are around, the State must prove two things: (1) you knew the drugs were there, and (2) you had dominion and control over them.

One of my favorite cases on this issue is Roberts v. State, 505 So. 2d 547 (Fla. 3rd DCA 1987). It shows that even holding a massive amount of drugs doesn’t automatically equal possession.

• The Deal: Co-defendants Solie and Roberts were unknowingly brokering a deal to buy 108 pounds of marijuana from undercover agents.
• The “Touch”: Before handing over the money, Roberts wanted to verify the weight. The undercover agents brought out the bales of weed. Roberts physically picked up a bale to weigh it.
• The Bust: Before the deal was finalized, the takedown units rushed in. Roberts was holding the bale (or had just held it) and was charged with felony possession.

The Ruling: Believe it or not, the appeals court overturned Roberts’ conviction. Here is why:

• Transitory Touching: The court ruled that Roberts had “transitory” (temporary) contact with the bale just to inspect it.
• No Dominion: Because the deal hadn’t closed yet, the undercover agents still owned the drugs. Roberts had control (he was holding it), but he didn’t have dominion (ownership/right to control).
• The Verdict: The court stated: “Neither Solie’s transitory touching of the bale nor the bale’s presence in the house is sufficient to demonstrate that either… possessed it.”

John’s Takeaways

This case is a powerful tool for defense attorneys in Orange, Seminole, and Volusia County. Here is what you need to remember:

• “Holding” Isn’t Always “Possessing”: If you briefly handled something—maybe someone passed you a baggie to look at, or you moved an item to sit down—that might be “transitory possession,” which is a valid defense.
• Dominion Matters: The State has to prove you had the right to control the drugs. If you were just inspecting them, or if they clearly belonged to someone else (like an undercover cop or a friend), you might not have dominion.
• Constructive Possession is Weak: When drugs are found in a shared space, the State has a heavy burden. They cannot just guess who owned them.
• Don’t Do the Police’s Job for Them: If you are in a room with drugs, do not admit they are yours just to “help out” a friend. Let the police do their own investigation (or fail to do it).

Let’s Challenge the Evidence

Technically “possessing” a drug does not mean you are guilty of the criminal act of possession. The law is nuanced, and the police often ignore those nuances to get a quick arrest.

If you have been charged with possession in Orlando, Sanford, Kissimmee, or Daytona, you need a lawyer who knows the difference between “touching” and “owning.”

Call me at (407) 423-1117. Let’s talk about your case.

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.