What Is Constructive Possession in Florida?

Where the term comes from

Section 893.13, Florida Statutes, says a person may not be in “actual or constructive possession” of a controlled substance unless it was lawfully obtained, for example under a valid prescription. The trafficking statute, section 893.135, uses the same words. Neither statute defines them. The meaning comes from court decisions and from the standard jury instructions that Florida judges read to juries.

What the State has to prove

In Conage v. United States, decided on August 25, 2022, the Florida Supreme Court quoted the standard criminal jury instruction on possession, number 25.7, as it then read. To prove that a defendant knowingly possessed a substance, the State must prove beyond a reasonable doubt that the defendant:

1. knew of the existence of the substance; and
2. intentionally exercised control over that substance.

The instruction goes on to say that control can be exercised over a substance whether it is carried on a person, near a person, or in a completely separate location, and that control can be established by proof that the defendant had direct personal power to control the substance or the present ability to direct its control by another.

That is the idea behind constructive possession: a person can possess something that is in a car, a room, or another person’s hands, if the State proves knowledge and control.

Why being nearby is not enough

The same instruction says that mere proximity to a substance does not establish that the person intentionally exercised control over it in the absence of additional evidence. Being a passenger in a car, or a visitor in a home, where a substance is found does not by itself prove possession. The questions are whether the person knew it was there and whether there is evidence of control.

Shared spaces

Cases about constructive possession often involve places used by more than one person, such as a shared car or home. In those cases the two questions above are usually what is disputed. How they come out depends on the evidence in the particular case.

Knowing it is there is different from knowing it is illegal

Section 893.101, Florida Statutes, says knowledge of the illicit nature of a controlled substance is not an element of a drug offense. A person who says they did not know a substance was illegal can raise that as an affirmative defense. When that defense is raised, the statute provides that possession, whether actual or constructive, gives rise to a permissive presumption that the possessor knew of the illicit nature of the substance.

Important points about the sources

• Jury instructions change. In Conage the Court noted that the possession instruction was materially amended in 2018 and 2019. Earlier versions described constructive possession in terms of a substance being in a place over which the person had control. The current instruction should be checked before relying on any summary, including this one.
• The Court did not rule on the definition. Conage was about the meaning of “purchase” in the trafficking statute. The Court said its decision should not be read as deciding what Florida law requires to prove constructive possession.
• Instructions are not statutes. They are the court system’s standard explanation of the law for jurors.

Common questions

Can I be charged if the drugs were not on me?

Yes. The statutes cover constructive as well as actual possession. The State still has to prove knowledge and control.

Whose drugs are they if they are found in a shared car?

Ownership is not the test. The questions are who knew the substance was there and who exercised control over it, and more than one person can be accused.

Does constructive possession carry a lighter penalty?

No. The offense level depends on the substance and the amount, not on whether possession was actual or constructive. See drug possession in Florida.

When to speak with an attorney

Possession cases often turn on small facts about where something was found and who had access to it. A licensed Florida attorney can assess the evidence in a specific case. A person who cannot afford a lawyer can ask the court to appoint the public defender. See also our summary of section 893.13 and the Drug Crimes topic page.