Possession of Cocaine

Possession of Cocaine

150 150 Steven Sessa

Definition and Penalties

Under Florida law, Cocaine is considered a “Schedule 2” controlled substance. Under Section 893.13(6)(a), Florida Statutes, a person found to be in “actual” or “constructive possession” of cocaine commits a third degree felony, punishable by up to five (5) years in prison or five years of probation, and a $5,000 fine. A conviction for cocaine possession will furthermore lead to a two-year Florida driver’s license revocation.

Required Proof

To prove Possession of Cocaine at trial, the prosecution must establish the following 3 elements beyond a reasonable doubt:

  1. The Defendant possessed a certain substance (actual or constructive possession);
  2. The substance was cocaine;
  3. The Defendant had knowledge of the presence of the substance.
    • See Fla. Std. Jury Instr. (Crim) 25.7.

Actual vs. Constructive Possession

As indicated above, Florida’s cocaine possession laws prohibit a person from knowingly being in ‘actual’ or ‘constructive’ possession of a certain quantity of cocaine.

Actual possession means that the defendant has the substance in his or her hand or within a container being held in hand, or the substance is so close as to be within ready reach and under the defendant’s control.

Where a defendant was not in actual possession of cocaine (not found on his person), the State must establish constructive possession.  Constructive possession of cocaine occurs where the defendant:

  • Knows the substance is within his presence; and
  • Has the ability to maintain control over it.

Joint Possession

If cocaine is found in a place that is in joint control, rather than in the exclusive possession of a defendant, the defendant’s knowledge of the cocaine’s presence and the ability to control it cannot be inferred from the defendant’s proximity (closeness) to the contraband. Rather, knowledge must be established by independent proof.

Moreover, where the only evidence of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.

Defenses to Cocaine Possession

Under the correct facts, Possession of Cocaine is highly defendable charge, and no person should attempt to resolve their case without first consulting with an attorney. The defenses available in cocaine cases may be legal and factual in nature.

Legal Defenses

It is often possible to attack a Florida cocaine charge by challenging the legality of the search, detention, or traffic stop that led to the arrest. If the police acted unlawfully, then it may be possible to suppress the evidence they obtained during the search or seizure of the accused. This is accomplished through the filing of a Motion to Suppress Evidence.

If a Motion to Suppress is granted, this may deprive the State of critical evidence needed to prove the case. Without the required evidence, the case will be dismissed, dropped, or the defendant acquitted.

Common legal defenses to a Possession of Cocaine charge can include:

  1. Lack of probable cause or reasonable suspicion for a search;
  2. Unlawful canine searches;
  3. Lack of proper canine certification for a search;
  4. Illegal ‘knock and talk,’
  5. Improperly executed search warrants;
  6. Lack of consent to search;
  7. Invalid third party consent for a search;
  8. Absence of a warrant;
  9. Miranda violations;
  10. Improper evidence handling;
  11. Unlawful “pat down” search;
  12. Any other form of unlawful police conduct.

Factual Defenses

In addition to legal defenses, there are numerous “’actual’ or evidentiary defenses available to contest a cocaine possession charge in Florida. In many cases, the prosecution may have difficulty proving that you were in “actual” or constructive” possession of the substance. If the State cannot prove that you knew of the presence of the cocaine, and that you exercised dominion or control over the substance, then the charge will not be proven beyond a reasonable doubt.

Example: Police serve a search warrant at an apartment where a Defendant lives with his girlfriend. The girlfriend leases the apartment. Defendant and girlfriend share a bedroom. Police execute a search warrant at the apartment. Hidden in one of the dressers in the bedroom is a large cache of cocaine. Defendant and his girlfriend both slept in the bedroom. Defendant is charged with possession of cocaine.

In this scenario, the evidence would be insufficient to show that the Defendant was in actual or constructive possession of cocaine. The reason: the cocaine was not found on the Defendant, and there is no other evidence supporting the allegation that the Defendant knew of the substance or exercised dominion or control over the substance. See Hill v. State, 873 So. 2d 491 (Fla. 1st DCA 2004).

Importance of an Attorney

Given the numerous legal and factual defenses available to contest a charge of cocaine possession, no person should attempt to resolve their case without first consulting with a criminal attorney.  Possession cases can be highly technical in nature, and must be approached from the earliest stages with proper negotiation strategies.

If you have been accused of possession of cocaine, contact attorney Steven Sessa for a free consultation. Attorney Steven Sessa handles cases throughout Southeast and Central Florida.