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Understanding Criminal "Possession"

handcuffed person

It happens all the time: individuals become accused of criminal possession of a firearm or controlled substances that are not actually found on their person. Often, the defendants in these cases are confused about how they can even be charged in the first place. If they were not found to be in physical possession of the items, how can the state assume that they've broken the law? The answer lies in the two forms of possession that are recognized in the state of Florida: actual and constructive possession.

Actual vs. Constructive Possession

Actual and constructive possession are the two major forms of possession that can substantiate a criminal charge against a citizen. Understanding the difference between these two types of possession is not only key to law enforcement and prosecutors, but it is also crucial to assessing a criminal charge for potential weaknesses.

The two forms of possession are as follows:

  • Actual possession. Actual possession describes instances of possession when the illegal items are found directly on the accused's person. This could mean in their hand, in their clothing or a bag that they're holding, or hidden anywhere else on their body.
  • Constructive possession. Constructive possession is sometimes more difficult to assert. This form of possession applies when illegal items are found in a place where it is assumed the accused has control over them. This could mean that the illegal items are found hidden on the accused's property, in a gym locker, in a desk at work—anywhere that indicates that the accused knew the items were there and could retrieve them.

Defending Against Possession Charges

The circumstances of your possession arrest and the type of possession cited by law enforcement is crucial to assessing a client's defense options. In both cases, matters of probable cause and Fourth Amendment rights are paramount-- if it is found that law enforcement did not have the authority to search the accused when the illegal items were found, entire charges can be dismissed.

In cases involving constructive possession, there may also be assumptions that prosecutors are making about the accused that need to be challenged in court. For example, in instances where individuals are charged with possession alongside other people (such as in social situations, in vehicles, etc.), it absolutely must be clarified who the illegal items actually belong to and what individuals were merely bystanders.

If you or a loved one have been accused of criminal possession of controlled substances or firearms, it is highly advised that you speak to an attorney immediately. At the Law Office of Michael Mirer, P.A., Attorney Mirer is a former Miami-Dade prosecutor who has more than 17 years of trial experience. He knows how the state of Florida pursues convictions and how to protect the rights and interests of his clients.

Do not face the allegations against you without a proven Miami criminal defense lawyer by your side. Call our firm at (305) 600-5678 today.