The Three Ps of a Drug Possession Charge
The War on Drugs perhaps saw its most surreal moment when Elvis met Nixon in the White House in December 1970. The King asked Nixon to make him an undercover marshal, because according to a letter he gave the President, Elvis had “done an in-depth study of drug abuse and Communist brainwashing techniques.” We aren’t sure what one has to do with the other.
That encounter occurred fifty years ago. But the War on Drugs continues to this day. And, the number of convictions is about the only measure of victory. So, police and prosecutors in Hillsborough County are extremely aggressive in this area.
Simple possession cases dominate area drug court dockets, mostly because police officers believe these cases are easy to prove. But these prosecutions have a number of moving parts. If a Tampa criminal defense attorney casts reasonable doubt on even one of them, the case collapses like a house of cards.
Produce the Substance
Physical evidence is only admissible in court if officers had a valid search warrant or a narrow search warrant exception applied.
Search warrants must be based on probable cause. Frequently, officers over-rely on informer’s tips. Generally, informers get paid or receive leniency when they provide information, and many people will say almost anything for love or money. So, a confidential informer’s tip is usually unreliable, for a judge’s perspective, unless there are some corroborating facts or the snitch had a flawless track record.
Many times, drug possession arrests happen so fast that there is no search warrant involved. Some common exceptions include:
- Consent: Owners or apparent owners can give officers permission to search their property. An apparent owner is someone like a vehicle driver who does not legally own the car. Consent is a voluntary, affirmative act. Officers cannot coerce people into consenting and they cannot imply consent.
- Plain View: If officers are legally in a certain place, like stopping a vehicle for a traffic violation, they can seize drugs or other contraband they see in plain view. So, this exception is only valid if the detention or arrest was legal.
Honorable mention in this category goes to the exigent circumstances exception. If officers reasonably believe someone might be in trouble, perhaps because of a disturbance or gas leak, they may sweep through the building to make sure everyone is okay. While they are there, they may seize any contraband they see in plain view.
Prove It Was Illegal
All officers testify that a substance “field tested positive” as drugs. These unscientific tests do not hold up in court. Only a chemical test establishes what the substance was.
Marijuana possession cases are particularly troublesome for prosecutors. Marijuana, which is illegal in Florida, is physically indistinguishable from hemp, which is legal in Florida. To establish the difference, prosecutors must perform an expensive THC content test. These tests are not available in all jurisdictions.
In the everyday world, possession is synonymous with ownership. I possess my pajamas, even if they are in a drawer and not within my reach.
However, in court, possession is not synonymous with ownership. People only possess drugs or contraband if they were roughly an arm’s length away, they knew the contraband was there, and they exercised control over it.
Vehicle possession cases are a good example. It’s very difficult for a person in the back seat to legally possess drugs which are underneath the front seat. That’s especially true if the defendant did not know the other people in the car very well (knowledge of the substance) and there was a front seat passenger (control over the substance).
Connect with an Experienced Attorney
Drug possession cases in Florida have a number of moving parts. For a free consultation with an experienced Tampa drug crime attorney, contact the OA Law Firm. Convenient payment plans are available.