Possession With Ability to Control

Certain issues keep coming up in my years of defending criminal accusations. Sure, these legal issues can be a bit boring, but for those of you willing and able, let’s review for a moment an often misunderstood element of a possession charge — the ability to control the drugs, sometimes referred to as “dominion and control”.

So, let’s say you’re at the dinner table with a couple of friends, and there’s drugs on the table right in front of you. You have “knowledge” of the drugs, but do you have the ability to control the drugs? Well, in order for the state to prove any possession of a controlled substance charge, or any trafficking charge based upon possession, the prosecutors must show that you had an ability to control the drugs. This does not mean that they simply prove both of your arms are working, all ten of your fingers are working, and as such, you are physically capable of reaching the drugs. As several courts have noted, we must “separate the issue of the accused’s ability to maintain control over the substance from the issue of the accused’s knowledge of the presence of the controlled substance on the premises. It is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it.” Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994). Some lazy prosecutors simply assume that a defendant’s knowledge and proximity to drugs is enough to convict, but “[k]nowledge of the presence of the drugs and the ability to exercise dominion and control over the drugs are not the same thing….In the case law, the concepts of “dominion” and “control” involve more than the mere ability of the defendant to reach out and touch the item of contraband. Thus, even where drugs are found in plian view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs.” Martoral v. State, 946 So.2d 1240, 1243 (Fla.App. 4 Dist. 2007)

Let’s give you a few examples. One of my personal favorites is State v. Snyder, 635 So. 2d 1057 (Fla. 2d DCA 1994). Snyder and his friend Parker drove to the post office because Parker was expecting a shipment of drugs. All Snyder needed to do was drive his friend to the post office, and Parker planned to break off a line or two for Snyder as a way to say “thanks bro.” Sure, using the term “thanks bro” is a crime in and of itself, but not an arrestable offense. As you might expect from a few enthusiastic drug users, Parker and Snyder couldn’t wait to dig in, so they decided to bust out a couple of lines right there in the parking lot of the post office. Parker lays out a few lines of the controlled substance on a cassette box (yes, old case, by the mid-90’s cassettes were almost gone), and the police bust them. Snyder never gets to partake of the lines on the cassette case, but is charged with possessing the drugs anyway. Ouch. The appeals court stepped in and reversed Snyder’s conviction for possession of a controlled substance, reasoning as follows:

“Although Parker had offered to let Snyder try some of the methamphetamine, there was no evidence … from which to infer that Snyder had the right to compel Parker to fulfill his promise. The ability to reduce a controlled substance to one’s actual possession was the key to the definition of constructive possession in Daudt v. State, 368 So. 2d 52 (Fla. 2d DCA 1979). In Daudt, this court found no dominion and control wehere there was no evidence from which to infer that a broker to the sale of marijunaa could have personally carried through with the sale or forced the seller to close. The Fourth District came to the same conclusion in Roberts v. State, 505 So. 2d 547 (Fla. 3d DCA 1987), where the defendants had a contractual right to marijuana having paid for it, but where they were not yet able to reduce it to their possession because it was still in possession of the undercover officers, who were carrying the bales into the house, when the defendants were arrested.

The state argues that Snyder’s proximity to the contraband together with his prior knowledge of the delivery and intent to try some of the substance gives rise to the inference that Snyder had a proprietary interest in the methamphetamine. For these facts to give rise to constructive possession, one must infer from the proprietary interest that Snyder had dominion and control. This reasoning is untenable because neither inference can be deduced from the available facts and because the ultimate existence of constructive possession requires an impermissible pyramiding of inferences….The interpretation of the facts in the light most favorable to the state establishes no proprietary right in Snyder, … nor any immediate right to reduce the methamphetamine to his possession … because Parker had not yet relinquished control over the line he was organizing for their use.”

I wrote an article about the Snyder case, entitled “Package Arrives Containing Drugs, Now What?“, click to check it out.

A Few Examples

But the Snyder case is not the only example of drug possession convictions that had to be overturned by an appeals court due to lack of dominion and control. Here’s a few more:

Sundin v. State, 27 So. 3d 675, 677 (Fla. 2d DCA 2009), holding that the ability to control was not proven when drugs were found in plain view on a nightstand between two beds in a motel, when the defendant was sitting on one bed about a foot away and another was on the other bed. The court reasoned “the State established that the pipe was within Sundin’s ready reach but failed to establish that Sundin had control over the pipe or [the motel] room”.

Harris v. State, 954 So. 2d 1260, 1262 (Fla. 5th DCA 2007). In this case, the State did not prove the defendant had the ability to control the drugs that were sitting in plain view on the living room floor where the defendant, a visitor, and the home owner were sitting, holding that “Although there was evidence the [drugs were] within Harris’ “ready reach”, this [was] insufficient to establish the control element.”

In some cases, you see the courts leaning towards a hint of “ownership” evidence, though a possession charge doesn’t require any proof of ownership, so don’t get your hopes up here–but in Hones v. State, the State failed to prove the defendant had the ability to control the drugs that were sitting in plain view on a coffee table, around which sat the defendant and two others; “we can find no basis upon which to conclude that hones acted in a manner disclosing an “apparent authority to treat the [marijuana] as [his] own”. 467 So. 2d 829, 830 (Fla. 2d DCA 1985).

As you can see from the above, the element of a possession charge which requires the defendant have the “ability to control” the drugs requires some proof that “the defendant have the ultimate control voer the drugs. He need not have them literally in his hands or on premises that he occupies but he must have the right (not the legal right, but the recognized authority in his criminal milieu) to possess them, as the owner of a safe deposit box has legal possession of the contents even though the bank has actual custody”. United States v. Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986) Thus, Florida courts are not necessarily concerned about a defendant’s raw physical ability to control a drug, the proof they require involves a certain level of authority, like that found in the Snyder case, above. Some courts call this the ability to “exercise restraining or directing influence over” a drug. State v. Lewis, 394 N.W.2d 212, 214 (Minn. Ct. App. 1986).

Now, fighting the State on this issue can come in at least one of three forms, a Motion to Dismiss Based Upon Constructive Possession, a Motion in Limine, or a Motion to Suppress. Further legal distinctions can be made to tease out the differences between “dominion” and “control”. We tend to lump these two words together in an ability-to-control discussion, but they are not the same, and that’s a discussion for another day.