Published on:

Merely Being Around Drugs Is Insufficient to Support a Conviction for Possession

The First District Court of Appeal recently issued an opinion concerning whether merely being around drugs is sufficient to convict someone for possession.  Based on the facts in that case, the answer is “no.”

In that case officers found illegal drugs while investigating a shootout between two cars that had left a gas station. Among other things, the officers found a cocktail shaker cup stuffed with marijuana lying next to a fence at the gas station’s property line.

At about the same time in another part of town, other officers stopped a car with three occupants that had been part of the shootout. Mr. McKire was in the back seat of the car heavily bleeding  from a gunshot wound. He was transported to the hospital.

A subsequent search of the vehicle revealed cocaine in a bag with traces of what appeared to be blood in the backseat pocket adjacent to where Mr. McKire had been sitting. Mr. McKire  subsequently was charged with drug crimes arising not only from cocaine found in the car and at the shootout scene, but also from the marijuana found on the ground at the store.

At trial, the State linked Mr. McKire to the marijuana based on a security video. The grainy video showed a car pull up to the gas pumps and wait a few minutes until another car arrived. A passenger from the second car exited and engaged with occupants of the first car, where Mr. McKire sat.

The video shows Mr. McKire then bolt from his car and dropping two unidentifiable objects on the pavement as he ran. An occupant of the second car retrieved one of the objects Mr. McKire dropped.  He then got back in his car and it drove away. As that car was leaving, Mr. McKire reappeared in the video and began shooting. Mr. McKire then got back into the rear seat of the first car and it then sped away.

After the close of the State’s case, Mr. McKire moved for a judgment of acquittal on the marijuana possession charge. He argued there was insufficient proof connecting him to the marijuana found on the ground at the gas station. The trial court denied his motion. Mr. McKire was subsequently convicted of possessing marijuana.  He was then sentenced to five years in prison on that charge.

The appellate court first noted that to convict Mr. McKire for possessing marijuana, the State had the burden of proving he either actually or constructively possessed it. Actual possession is established if the contraband is found on the defendant’s person or is “within his ‘ready reach’ and under his control.” Constructive possession, on the other hand, is proven by showing that “Appellant knew of the presence of the contraband on or about [the] premises and had the ability to maintain dominion and control over it.”

The State’s case against Mr. McKire relied exclusively on the gas station’s security video. The video showed Mr. McKire running and dropping objects near the gas pumps during the shootout. Mr. McKire dropped the objects in the same general area where officers later found the marijuana.

As damning as this evidence may sound, the court found several problems with it.  First, while the video showed Mr. McKire running from the gas station and dropping two objects,  it failed to show what he dropped. While the court found it plausible that one of the objects McKire dropped was a shaker cup, the court found that conclusion was far from clear from the video.

Beyond this tenuous evidence, the court opined there was no other evidence connecting Mr. McKire to the marijuana-filled shaker cup.  In this regard, the court noted the absence of evidence that McKire owned or possessed such a cup; nothing indicated that the cup only appeared after Mr. McKire’s visit to the gas station; and no physical evidence connected him to the cup or contents of the cup. Under these circumstances, the court noted the only thing tying Mr. McKire to the cup is that they both were at the gas station around the same time. The court then observed this fact alone is insufficient, because when contraband is found in a public place, more than mere proximity to the defendant is necessary to sustain a conviction.

Furthermore, the court noted a discrepancy in the video. It showed the objects dropped by McKire  at the gas station didn’t appear to fall in the grass strip next to the fence, where the officers found the marijuana, but rather appeared to fall on the pavement. The court found the video evidence showed only that Mr. McKire dropped something in the general vicinity of where officers later found marijuana.

In summary, the court found Mr. McKire wasn’t sufficiently connected with the contraband. He wasn’t found with, near, or making moves toward the marijuana. Under these facts, his earlier proximity to the area where officers later found the contraband was deemed insufficient as a matter of law to establish possession. His conviction for that charge was reversed.

As this case makes clear, there is a significant difference between actual, versus constructive, possession of drugs.  If you have been arrested for possession of drugs you may have strong defenses to your charges based on this difference.  Drug possession cases carry significant penalties, including automatic suspension of your driver’s license.  If you’ve been arrested for possession of marijuana or controlled substances, make sure you contact a Jacksonville criminal defense lawyer with knowledge about, and experience with, these kinds of matters.  Doing so will give you the best chance of avoiding a significant jail or prison sentence.  Please call me for a free consultation to discuss how I can help you with your drug / controlled substances possession case in Duval, Clay, Nassau or St. Johns Counties.