When is Someone in Constructive Possession of Drugs?
In order to prove someone guilty of the crime of trafficking in cocaine, a prosecutor must establish that the accused individual knowingly was in either actual possession or constructive possession of 28 grams or more of cocaine. To prove constructive possession, the prosecutor has to show the following two things beyond a reasonable doubt:
- The defendant knew of the presence of the cocaine; and
- The defendant was able to exercise dominion and control over the cocaine.
Proving these two things can sometimes be quite difficult, especially when the cocaine is located in a jointly-occupied automobile. That was the situation in the case of Culver v. State of Florida.
In that particular case, Ms. Culver was driving her car and had a passenger with her when the police stopped her. After a drug-sniffing dog arrived and alerted to the presence of contraband inside Culver's vehicle, the car was searched, and a paper bag containing 33.45 grams of crack cocaine was found behind the passenger seat. Culver was eventually charged with trafficking in cocaine.
At her trial, Culver argued that the prosecutor had not established that she was in possession of the crack cocaine found in her vehicle due to the lack of evidence showing that she had knowledge of the presence of the cocaine or that she had dominion and control over it. Nevertheless, Culver was convicted of trafficking in cocaine.
On appeal, however, the court hearing her case reversed her conviction because the prosecutor failed to present any evidence linking Culver to the cocaine other than the fact that she was close to it while riding in her car. The appellate court stated:
"Ms. Culver pointed out that her passenger could have put the brown paper bag behind the passenger seat after Ms. Culver had left the car. Indeed, both the deputy who made the stop and the K-9 officer who was assigned to watch the passenger expressed concern about the passenger's continuing movements inside the vehicle after the stop. We note that the [prosecutor] did not present any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish that Ms. Culver had dominion and control over the brown paper bag or the plastic baggie hidden inside it. For example, the [prosecutor] did not present evidence showing that the law enforcement officers saw Ms. Culver in possession of the brown paper bag, that the brown paper bag was already behind the passenger seat when Ms. Culver left the vehicle, or that the brown paper bag was found inside or in close proximity to Ms. Culver's personal property."
Wow. That is very interesting case. It appears the arresting officers nor the prosecuting attorney did enough due diligence in this one. The end result was nobody was convicted of trafficking cocaine? that just doesn't seem right. very well written post
I was recently in Palm Beach County to pick up a friends kids from spring break when we were on I95 and a narc unit undercover car got berhind and followed us for 10 minutes and then turned his lights on and pulled us over, he came to the passenger side window and asked my friend that was driving the car and he said it was for illegal tint on the front windows which he metered and it registered at 17% which according to WV and FL law is a max of 20% which he never saw the front windows until he came up to the passenger bside window and asked my friend driving to step out so he could hear her better and took her back to his car and wtarted questioning her and told her he knew there was drugs and she wqas going to jail so he can get a warrent or she could tell him where the money or drugs are and he wont take her and us to jail today, so she told him she had her prescription meds and a couple of friends that she keeps there meds so they don't get stolen and she had her's and my money in her purse and he could look, well he came and got us out of the car and seperated us and made us set on the guard rail and got her purse out and found her meds, the 2 friends meds in the right bottle with the right count, but he did find a crusher with someone elses zanex in it instead of the bottle and he told us all individually that we can take the blame for it or we all will go to jail, i told him and iI had never seen it and was never in her purse and so did my friend setting in the back seat and my friend driving said she didn't know it was in there and never seen it, later on we found out that it was her ex's and he put it in the side pocket a few days ago when he was there getting some of his stuff, but after all it was there and he said since her purse was in the back floor board and since we all could have reached us he was charging us all with "Constructive Possesion" and since my friend that was driving was holding my money so I didn't spend it all at the outlet malls on the way down that he was charging he with Interstate Trafficing, Kingpinning since she has over $500, it was $900 of mine and $800 of hers for the 3 days we were going to be in Palm Beach and going to Ft. Lauderdale to pick up her kids but he took every penny we had and all the prescription bottles that were in the car, even tho they were legal perscriptions in the right bottles and the 2 bottles that belonged to her friends that she holds that they could call them and verify it but he told me and our friends that he was taking mine and her money and the one friend had $400 in her pocket he didn't take and said she had to fund our way home and then he gave her a reciept stating that there was approximately $1700 and never listed anywhere what else he took and kept asking "who was going to the Dr in Broward County" and we kept telling him no one was and thought we were in Palm Beach County and we were. He told my friend driving that "She had 48 hours to get her kids and get out of Florida and he told me and my other friend that we could come back in 30 days and probually be ok but in 60 days there would be an arrest in Florida warrent for the 2 of us for constructive possesion. How could he possible issue a warrant for any of us considering he said the main reason he pulled us over for illegal tint on the front windows that he didn't see at the time and wasn't illegal at all, I have the written warning he gave me with statement of 17%, would everything that he found after that be an illegal search and seizure since he told me my one friend told him he could get her purse and search it but the car wasn't hers and he came to me and told me he was searching the car and didn't ask to search it?
Attorney Chapman's response:
If the car was stopped illegally, then any incriminating evidence that the officer obtained following that stop may well be thrown out of court. However, at least one Florida appellate court has ruled that if an officer has probable
cause to believe that the windows of a car are illegally tinted, it is legal to stop that car even if the officer subsequently determines that the tinting is legal. You can read that case at:
http://myfloridalegal.com/alerts.nsf/d1b346d5ba583c0585256642005da52a/26d78056d8a1f0d08525749c005c4e22/$FILE/5D07-3444Wimberly.op.pdf
Thanks so much for this post. I am attending school for criminal justice and was looking for a way to get my client out of a case like this. We have to pretend we are their attorney and find a way for our client's charges to be droped. So this was good detail informations, thanks a lot!
Apparently we have what could be called the fruit of the poisonous tree along with the exclusionary rule... That officer did not have any real reason to stop you other than the suspicion of drug trafficking which lead him to the car stop... perhaps a high drug trafficking area... so he used the old reason for probable cause eg.. tints..muffler...and so on so that he could get a closer look and feel. The oldest trick is the book is to divide and conquer...so he separated her from the rest and questioned her with hopes to find a hole and yes he did... she gave him everything he needed... spontaneous utterance!! Voluntarily incriminating herself when initially the cop had nothing... All she needs is a good attorney and that case will be dismissed... its all boloney !!