As a criminal law attorney in Fort Lauderdale, I have many friends who ask me, “Can the police arrest me if I’m riding in a vehicle that contains marijuana?” Although you should never ride in a vehicle that contains marijuana, you can reduce your chances of being arrested by understanding what the legal concept of “constructive possession” means. Florida’s Fourth DCA recently wrote an excellent analysis of constructive possession in Brinkley v. State, 12 So.3d 311 (Fla. 4th DCA, 2009).

To be convicted under Florida Statute 893.13 (Possession of a Controlled Substance), the State must prove beyond a reasonable doubt that you possessed and had knowledge of marijuana. Possessing means taking personal charge or exercising the right of ownership, administration or dominion over the thing possessed. Possession can be real or constructive. Real possession is a simple concept: in your hand, in a container in your hand, on your person or within easy reach and under your control. If a person has sole possession of a controlled substance, knowledge is inferred. However, constructive possession issues are more complicated.

To establish constructive possession of marijuana, the State must prove that you had (1) command and control over the marijuana, (2) knowledge that the marijuana was in your presence, and (3) knowledge of the illicit nature of the marijuana. The most common issue in dispute is whether you had dominance and control over marijuana. If the vehicle in which the marijuana is found is in your joint (no pun intended), rather than your sole possession (i.e., you are the passenger in a vehicle), knowledge of the presence of the controlled substance in the vehicle vehicle and your ability to maintain control over the controlled substance shall not be inferred.

In simple terms, if you were foolish enough to get caught in a vehicle with a bag of marijuana in plain sight placed in the center console, the State would still have to prove that you had “control” over the marijuana. , and not simply “knowledge” of marijuana. Although not specifically defined, control is the ability to take, use, possess (or smoke) marijuana without receiving permission from another person. Mere proximity to marijuana is not enough to establish control when the marijuana is not under your exclusive control. Possession can be joint (two or more people can exercise control of cannabis) but only if both individuals have control over the marijuana.

To prove dominance and control, the police will have to observe that you possess, conceal, or inhale marijuana or make incriminating statements admitting ownership of marijuana. Notwithstanding the above reasons, the police cannot charge you with marijuana ownership simply because you are in a vehicle that contains marijuana. Therefore, never make incriminating statements to the police regarding the ownership of marijuana. No matter what the police promise you (ie, we won’t arrest you if you admit ownership), don’t admit you own the marijuana. Also, try to stay calm: don’t make stealthy or quick moves that might make the police think you’re nervous or trying to hide marijuana. Also, do not smoke marijuana in the vehicle. It’s often hard to deny ownership when you and the vehicle reek of marijuana.

On the other hand, should you decide to travel in a vehicle that contains marijuana, make sure the marijuana is hidden (out of sight), preferably in the trunk or in a locked compartment. At a minimum, don’t leave marijuana in plain sight on the center console or in the ashtray. Also, do not carry any paraphernalia (pipe, rolling papers, etc.) on your person.

Finally, although the police should not arrest you for possession of a controlled substance if they cannot prove actual or implied possession, that does not mean that the police will not arrest you anyway. Police routinely arrest carloads of college students where marijuana is found inside a vehicle, even when they cannot identify who exhibited dominance and control. At that point, it is crucial to contact an experienced criminal defense attorney to discuss the specific facts of your case and file the appropriate Motions. Possession of even 1 gram of marijuana is punishable by up to a year in jail and/or 12 months probation and a possible two-year driver’s license suspension. He will not plead guilty to your case without speaking with an experienced criminal defense attorney.

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