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Merely Being Near Drugs May Not Make You Liable for Possession

Have you been arrested for possessing or trafficking drugs?  Were the drugs found in a home or other place you do not own?  If so, you may not be criminally liable for those drugs, as discussed in a recent court decision.

In Dion Johnson v. State of Florida, Mr. Johnson was visiting someone else’s house when SWAT team members executed a search warrant. Many people frequented the house and there were others present at the time of Mr. Johnson’s visit.

Mr. Johnson was in the living room when the officers appeared.  They found drugs in the bedrooms, including what was determined to be substituted cathinones, drugs related to amphetamines. The only item found in the house with any direct connection to Mr. Johnson was a cell phone. The one photograph found on the phone showed approximately six baggies on top of the kitchen counter in the house. The baggies contained unidentified items, but they were tied similarly to the baggies containing the drugs found in the bedrooms. The photograph was taken two days before the search warrant was executed.

At his trial, Mr. Johnson’s lawyers sought a judgment of acquittal, relying in part upon the photograph on his phone.  Mr. Johnson was tried and found guilty of violating section 893.135(1)(k), Florida Statutes (2017), which prohibits a person from selling, purchasing, manufacturing, delivering, or bringing into Florida or knowingly being in actual or constructive possession of ten grams or more of a substituted cathinone. He was then sentenced to fifteen years’ prison on the trafficking offense and to time served and probation on the other offenses for which he was found guilty.

Mr. Johnson’s conviction was based on a theory of constructive possession.  To prove constructive possession, the State is required to establish a defendant knew of the presence of the contraband and had the ability to maintain dominion and control over it. Knowledge of the contraband may be established if the contraband was in plain view in the common areas. Dominion and control over contraband may be inferred if the defendant was a resident or owner of the premises and in exclusive possession. If the evidence shows joint possession of the premises, or that the defendant was a visitor, then the state must establish defendant’s control over the contraband by independent proof beyond mere proximity, such as by evidence of incriminating statements or circumstances.

The appellate court agreed the State’s evidence was insufficient to show Mr. Johnson’s  knowledge of and control over the substituted cathinones. The State offered no evidence connecting Mr. Johnson to the bedroom where the cathinones were found. It was undisputed he was in the living room when law enforcement arrived and that other individuals were also in the house at the time. Although one of the State’s witnesses testified Mr. Johnson sold drugs from the residence on one occasion, the witness was unable to provide either the date of that alleged sale or the type of drugs sold.  As such, other than providing some evidence Mr. Johnson had knowledge that drugs were sold from the residence, that witness’s testimony provided no link between Mr. Johnson and the substituted cathinones for which he was convicted of trafficking.

The primary evidence relied upon by the State was the photograph found on Mr. Johnson’s phone. The court found that, even assuming the photograph was taken by Mr. Johnson, it did not prove he had knowledge of and control over the substituted cathinones. Not only was the photograph taken two days prior to the search, but it was taken in the kitchen, not in the bedroom where the drugs were found.  Nor did the State offer any evidence as to what the items in the photograph actually were or appeared to be.  For those reasons the court rejected the State’s argument that the photograph constituted independent proof that Mr. Johnson had knowledge of the substituted cathinones found in the bedroom or that he had control over those drugs.

If you have been arrested for constructive possession of drugs that were merely near you and not on your person, you may have strong defenses to assert in your case.  You should therefore contact an experienced Jacksonville criminal defense attorney to discuss how best to challenge the State’s constructive possession charges against you.  If you were arrested in Jacksonville, Orange Park, Fleming Island, Green Cove Springs, Middleburg, Keystone Heights, Fernandina Beach, Yulee, Callahan, Hilliard, Macclenny, St. Augustine or surrounding areas, call me for a free consultation to discuss how I can help you get the best possible result in your drug possession case.

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