The Three Ps of Drug Possession
Public attitudes about marijuana are changing, mostly because of the opioid overdose crisis. Many people see marijuana as at least a semi-legitimate alternative to potentially deadly prescription pain pills. But law enforcement’s attitude is unchanged. In the past decades over half of the drug arrests in Florida are for marijuana, and close to 90 percent of these arrests are for simple possession.
The changing public attitude makes it easier for Tampa drug crimes lawyers to successfully resolve drug possession prosecutions. Prosecutors know this, so they are usually willing to make favorable deals to avoid jury trials. That’s especially true if, as is often the case, the state cannot firmly establish all three legal elements of a drug possession case.
Produce the Substance in Court
Possession cases, such as drug possession, pornography possession, and weapons possession matters, always involve either a search warrant or a search warrant exception.
Under the Fourth Amendment, search warrants must be based on probable cause. That’s a rather nebulous standard of evidence which is between a preponderance of the evidence (more likely than not) and beyond a reasonable doubt.
Frequently, drug search warrants rely, at least in part, on informer’s tips. These informers almost always receive either money or leniency in exchange for the information they provide. Since some people will say nearly anything for love or money, many courts view these tips as inherently unreliable.
Over the years, courts have carved out some exceptions to the warrant requirement. Some prominent ones include:
- Consent: Owners or apparent owners, such as a driver who does not own the vehicle, can give verbal consent to search real or personal property. Consent is a voluntary, affirmative act.
- Plain View: If officers are lawfully in a certain place at a certain time, they may seize drugs or other contraband they see in plain view. Therefore, if the stop or arrest was illegal, the seized evidence is probably inadmissible.
- Pat-Down Searches: If officers have reasonable suspicion, which is basically an evidence-based hunch, of criminal activity, they may pat suspects down and seize any contraband they see, or rather feel, in plain view.
The state has the burden of proof to show that a search warrant exception applies. Otherwise, the seized evidence is inadmissible.
Prove it was Illegal
Officers always testify that a substance “field tested” positive for marijuana. Usually, this unscientific field test is a sensory test. If it looks and smells like marijuana, then it must be marijuana, according to law enforcement.
Marijuana, which is still illegal, is physically indistinguishable from hemp, which is legal. In court, only an expensive THC content test can determine the difference between these two substances, at least beyond a reasonable doubt. So, what might be a formality in some situations is often a critical part of a marijuana possession defense.
Possession under Florida Law
In everyday language, possession and proximity are synonymous. I possess my TV remote, even if I am on the sofa and the remote is on the coffee table.
But legal possession is different. In addition to physical proximity, prosecutors must also establish knowledge and control. And, they must establish these elements beyond a reasonable doubt.
Assume Max is in the back seat of a car. Officers pull over the driver and smell marijuana. The driver consents to a search, and officers find a stash under the front seat. If they arrest Max, and they probably will, prosecutors would be hard-pressed to establish knowledge and control in court.
Count on Experienced Lawyers
Drug possession charges do not always hold up in court. For a free consultation with an experienced criminal defense attorney in Tampa, contact The Matassini Law Firm. We routinely handle matters in Hillsborough County and nearby jurisdictions.