The law regarding possession of cocaine is vast and complex. At the Law Office of John P. Guidry, we subject the facts and legal issues surrounding your arrest to a thorough examination. The available criminal defenses will vary according to the particular facts and circumstances that are unique to your case. To achieve the most favorable resolution to your case, our law office believes that each client’s contribution and input is a critical component to this process. At your free initial consultation, an Orlando cocaine possession lawyer could immediately begin to examine the facts as they relate to your case and the possible defenses available. Let’s jump right into some legal issues common to Possession of Cocaine charges.
Actual Possession vs. Constructive Possession
Often, the analysis begins by examining the “type” of possession charged. Keep in mind, with a possession of cocaine charge, ownership of the illegal substance has little or often no correlation to the issue of possession . If you have been arrested for possession of cocaine Florida’s drug laws do not take into account whether the illegal substance is “owned” by you or another person. Florida criminal law is only concerned with whether you were either “actually” or “constructively” in possession of the cocaine.
Florida case law makes a distinction between actual and constructive possession. Actual possession simply means that an individual has been found to have the cocaine or illegal substance on their person. A clear example of actual possession is when a person is found to have a baggie containing cocaine in their pocket, hands, mouth, or jacket (of course, we often borrow jackets from friends when we’re cold, never fully searching the jacket for drugs!).
Florida criminal law also provides for another type of possession referred to as constructive possession. Constructive possession simply means that a person has knowledge of the item coupled with the ability to access the cocaine. A clear example of such a case of constructive possession is during a traffic stop while riding as a passenger in a friend or family member’s car. If a search by law enforcement reveals cocaine in the center console or glove box, Florida law allows the prosecutor to pursue a conviction of the passenger for possession despite the fact that the passenger was not in actual possession of the cocaine. The State Attorney will attempt to prove that the passenger had knowledge of the illegal substance, as well as, the ability to access the cocaine, a concept often referred to as “dominion and control.” Should the State be able to prove both elements, then a conviction for possession of cocaine could result, despite the fact that the Defendant was not in actual possession of the illegal substance. Please note that it is very difficult to prove a constructive possession case in the State of Florida. For further info on this topic, check out my article entitled “How Tough Is It to Prove Constructive Drug Possession?” Let’s review a couple of examples.
Constructive Possession Essentials: Dominion, Control, and Knowledge
In a constructive possession case, “ability to control” the drug is a factor the State must prove, simply “knowing” the drugs are present is not enough to be convicted. For example, in Lindsey v. State of Florida (793 So. 2d 1165 (1 st DCA 2001)), the police stopped a vehicle with two occupants. The defendant, a passenger, told the police that he knew of the presence of drugs in the car driven by the co-defendant. The court held that the defendant could not be convicted of the possession charges because there was no evidence that he had the ability to control drugs. Of course, had these same facts happened without a passenger in the car, we would not have a “constructive possession” case, and the court would have implied “dominion and control” because the driver of the vehicle has sole control of the vehicle.
Of course, “knowledge” of the drug’s presence must also be proven by the State, just the fact that drugs are found nearby a citizen is not enough to show “knowledge”. Take the case of Downard v. State of Florida (792 So. 2d 83 (2d CDA 2001)), where a car was stopped by police and cocaine was found in the front console of the defendant’s car, four inches from the driver’s seat. The court reversed the conviction because the State never presented evidence, thru independent proof, that the defendant knew of the presence of the drugs.
“Knowledge” also comes into play when the cocaine is found on a common object. In Davis v. State of Florida (784 So. 2d 1225 (2d DCA 2001), that court overturned a conviction for Possession of Cocaine, finding that where cocaine residue is found on a common object in defendant’s possession (here, a box cutter), the State must show other evidence of knowledge to sustain a possession conviction.
Cocaine found in “public places” can also create problems when the State is trying to convict on a constructive Possession of Cocaine. For example, in Davis v. State of Florida (761 So. 2d 1154 (2d DCA 2000), the police were chasing the defendant and he fell. When the police caught up, they found a trafficking amount of cocaine a short distance away. The court overturned the cocaine conviction, holding that the circumstantial evidence is insufficient to sustain a trafficking conviction. When drugs are found near a person in a public place, more than mere proximity is needed to prove possession.
Another common constructive possession issue involves drugs found in a car with multiple passengers. What happens when a passenger leaves drugs in a car? Well, law enforcement typically has two lazy responses such a scenario. First, they arrest the driver or owner of the car. Second, they arrest everyone in the car. Is this poor police work? Um, yes. Each of the above scenarios is based upon mere guesswork rather than evidence (remember, mere proximity to a drug is not relevant). I hate to burst bubbles out there, but forensic tools can assist a non-lazy officer in determining who may have possessed a controlled substance. But why put forth any sort of effort to uncover the truth? What is “truth”, anyway?
OK, back to drugs in a car. In the case of R.C.R. v. State, a juvenile was found guilty of possession of cocaine after the arresting officer found a baggie of cocaine hidden in the back seat area of her patrol car. 40 F.L.W. D1882 (4th DCA 2015). The juvenile was searched by the officer before being cuffed and placed in the back seat. R.C.R. was convicted of possessing a hidden baggie of cocaine, even though to hide the cocaine he would have had to manipulate his handcuffs while seated in the back of the patrol car so that he could retrieve cocaine from a place that eluded the officer’s initial body search. Someone should contact Penn & Teller, because this sort of magic would fool even these experts. Sure, it’s one thing to retrieve the hidden cocaine while cuffed, but to also hide it while cuffed takes this magic trick to the next level. This kid has a bright future ahead of him. The question is, just how many people hung out in the back of this patrol car before R.C.R.? Isn’t it possible that any number of folks could have hid this cocaine in the back of the patrol car? Of course not, according to the officer. To no one’s surprise, the officer testified as to how she diligently searched the car prior to the defendant entering it–blah blah blah.
I know quite a few courts that would, unfortunately, buy this cop’s story all day, every day. But not R.C.R.’s appellate court, throwing out his conviction because “the circumstantial evidence is susceptible to an interpretation that Appellant is innocent because someone else could have left the baggie in the vehicle and this reasonable hypothesis was not rebutted. Appellant also argued that, because the baggie was not in plain view, the State does not get the benefit of the presumption that Appellant had knowledge of the cocaine in the vehicle to establish constructive possession“. Id. For a more in depth analysis of this case, including cynical insights into how this officer will testify next time, please check out my article “Drugs in the Back of the Cop Car — Can They Prove This Case“.
Possible Defenses to Possession of Cocaine Charges
Often it takes a search by law enforcement to produce a cocaine possession charge. The threshold issue becomes whether the initial stop and subsequent search were lawful and constitutional. At the Law Office of John P. Guidry, II, we work closely with the client to develop the facts in order to secure the most favorable outcome and your unique case. It is important to know whether the stop was of your person or vehicle. If the initial stop or subsequent search was illegal because of lack of probable cause or reasonable suspicion, the evidence gained from that search will be inadmissible in court as “fruit of the poisonous tree.” The idea behind the fruit of the poisonous tree doctrine is that, if the search is illegal, then all evidence flowing from the search is tainted and cannot be used in court. Since 1993, attorney John Guidry, can easily evaluate the facts of your case and the lawfulness of any search conducted by law enforcement. If the initial stop or subsequent search appears to be suspect we will file a motion to exclude or suppress the evidence flowing from the unlawful stop, search or seizure. This could be a critical motion in your case because winning such a motion will result in preventing the state from moving forward with the case.
Another common method of attacking a possession of cocaine charge in constructive possession cases is to closely scrutinize the facts with regard to the Defendant’s “knowledge” and “dominion and control” of the illegal substance. It may be that in your case the available evidence regarding whether you knew or should have known about the illegal item or whether you had access to such an item may be weak or nonexistent. Such weak evidence will make it difficult for the state to proceed against you in court on possession charges. Knowledge is difficult to prove in cases where the “possession” consists of drug residue on a pipe or smoking device. For more details on this issue, check out my article entitled “How Can Residue on My Pipe Lead to a Possession Charge?“
Another important aspect in defending your possession of cocaine involves the scientific evidence required to prove a substance is, in fact, cocaine. In order for the state to prove that the substance is cocaine, it must be lab tested (usually by the Florida Department of Law Enforcement). A law enforcement officer’s field testing of the cocaine is not enough to prove beyond a reasonable doubt that the substance is cocaine (unfortunately, the same is not true of a misdemeanor marijuana charge, where no lab tests are required). Typically, the State sends the substance to the Florida Department of Law Enforcement (FDLE). FDLE’s lab analyzes the alleged cocaine, and weighs the substance (as police scales are often inaccurate, usually tipping the scales heavy, not light, in favor of the state’s case).
This is the chemical formula for cocaine.
Even if the Facts are Against You, an Orlando Cocaine Possession Attorney could Help
At the Law Office of John Guidry, we understand that in many cases it may be necessary to resolve your case through negotiation rather then by raising defenses or challenging the facts, assuming there are no motions to dismiss or suppress available. If, after extensive discovery and depositions, negotiation may likely produce a more favorable outcome, then, depending on the facts and circumstances of your case, our law office will be able to structure a settlement that will best serve your interests and mitigate your potential penalties. Since 1993, we have defended drug cases, here’s some potential outcomes.
- Getting the Charges Dismissed: We can make a formal application for the court to allow your participation in a “diversion program.” By successfully completing such a program the judge or State Attorney would then dismiss the charges against you.
- Plea Bargains: By spending time with our clients to develop the facts our office can provide “mitigating” evidence to the judge and the state and often will encourage our clients to prepare for court by completing certain tasks in anticipation of your court hearing.
- Avoiding Conviction: By successfully negotiating with the State and the Court we may be able to obtain a withhold of adjudication. There are many benefits that come with obtaining a withhold of adjudication on a possession of cocaine charge. You could thereafter truthfully state that you had been not convicted of said charge. Additionally, this would also allow you to avoid the suspension of your driving privileges thereby avoiding the automatic two year driver license suspension.
- Getting Your Record Sealed: At the conclusion of your case, we can petition the court to seal all of the records related to your case, including your arrest. In many instances this would allow you to truthfully state that you have never been arrested or charged with an offense when applying for employment or other educational and career opportunities.
- Drug Court: This is a court supervised, comprehensive treatment court for nonviolent defendants. Drug Court is a voluntary program that operates in partnership with community substance abuse providers, concerned citizens, Judges, Sheriff Offices, the State Attorney’s Office, the Office of the Public defender and local law enforcement. The client enters the drug court program through Pre-Trial Intervention and will be eligible to have the charges dismissed upon successful completion and graduation from the drug court program. For those who enter Drug Court as a condition of probation, their successful completion will result in a withhold of adjudication. In either case, a client who successfully completes the requirements of drug court can avoid a felony conviction.
- Pretrial Intervention: If this sounds similar to pretrial diversion, you’ve been paying attention. Pretrial intervention (PTI) is different from diversion in that it is run by the Judge, not the state attorney’s office. When the program is completed, the judge will dismiss all charges (as opposed to pretrial diversion or drug court, where the state nolle prosses/drops charges). Basically, PTI is a judge run drug court program.
The laws governing Possession of Cocaine are shrouded with nuances and distinctions that can change the outcome of your case. If you have any questions about your Possession of Cocaine charge it is important to contact an experienced attorney who can handle your unique case. Please contact an Orlando cocaine possession lawyer for further information and to schedule a free initial consultation to discuss your case.
Possible penalties that come with a conviction for felony cocaine possession under 28 grams:
- Automatic driver’s license suspension for six months (done by DMV, judge does not have to mention this).
- Substance abuse evaluation and follow up treatment (BEWARE, treatment can be lengthy!).
- Random urine testing, person subject to random search during term of probation.
- Possible civil seizure and forfeiture of any vehicle used in the commission of offense upon conviction.
- Fines up of $5,000.00.
- Incarceration in state prison for up to 5 years.
- Probation or Community Control
PLEASE NOTE – penalties increase with amount or intent to sell/deliver