Frequently asked questions about Possession of Marijuana in Florida

If you were arrested for Possession of Marijuana it is likely that you will have many questions about your case. Here are some of the questions my clients often have after they are arrested. 

Were my Constitutional Rights Violated?

While this is a complicated topic, in general, a constitutional rights violation means that the client’s lawyer look into how marijuana was found by the police officer. In this type of case, the criminal defense lawyer will do legal research and determine whether the police officer had probable cause or reasonable suspicion to search the person, vehicle or home where the marijuana was found. If the police officer searched or stopped the person in violation of their constitutional rights, his or her lawyer may have grounds to ask the judge to throw out the case due to the violation of the individual’s constitutional rights.

Did I have constructive or actual possession?

The second most common issue that arises for a Possession of Marijuana charge in Florida is what is referred to by criminal defense attorneys as “constructive possession”.  This type of situation usually occurs when a person is found near marijuana, but they are not actually in possession of the drug. For example, if the police stop a car due to a traffic violation and find marijuana in the backseat of the car, the marijuana is not necessarily in possession of one individual in the vehicle. If you are near or in close proximity to marijuana and not in actual possession, the police will often charge you under a law called “constructive possession”. If you happen to be in a car in which the police find marijuana, you can hire an attorney to argue that you you had no knowledge that the drug was in the vehicle. Additionally, this issue may arise when the police execute a search warrant of a home where several people live and marijuana or a marijuana grow house is found inside. A knowledgeable criminal defense can present the necessary law and facts to the judge to help you protect your legal rights regarding “constructive possession”.

If you are being charged with Possession of Marijuana in Florida the State of Florida will need to prove several things “beyond a reasonable doubt”:

  1.         That you knew of the presence of marijuana.
  1.         That you were able to exercise control or ownership over the marijuana.
  1.      The substance was marijuana.

Why should I hire an attorney to defend me for Possession of Marijuana case?

An experienced attorney can look into the facts and possible defenses in your case. An attorney can also help you decide if you should go to trial or try to reach a plea deal with the prosecutor or Judge. Your attorney can explain the specifics of Marijuana law in Florida and your constitutional rights regarding search and seizure. If you do not wish to enter into a plea agreement, your defense lawyer will represent you in a jury trial in which a jury will decide whether the State of Florida proved your case beyond a reasonable doubt as required by Florida law.



How do the police detect Marijuana?

In many cases the police find marijuana in a person’s car after they have been stopped for speeding or some traffic related issue. The usual scenario is that a person has been smoking marijuana in their car and when the police stop them they are able to smell the odor of marijuana in the car. In my experience, this is how the police detect and investigate a large portion of marijuana cases. Additionally, marijuana is also found and detected by police when they simply ask a person “do you have any drugs in your car or on you?”. Please remember that you always have the right to remain silent and right to an attorney.

What are the possible outcomes for my misdemeanor marijuana Case?

If you are charged with a misdemeanor possession of marijuana in Florida, your case will have several possible outcomes:

First, your lawyer can take your case to trial. At the trial six jurors will hear the facts of your case and either find you not guilty or guilty of possession of marijuana. However, there is a danger that if you are found guilty, the judge has the discretion to give you a harsh sentence. The maximum penalty for misdemeanor possession of marijuana is one year in county jail and a $1,000 fine. Additionally, if you are adjudicated the judge will suspend your license for one year.

Second, your case may be dropped by the prosecutor or dismissed by the court. Of course, this is the best case scenario. This will usually only happen if your criminal defense lawyer can find a legal reason for the case to be dropped. This usually occurs if your lawyer can show the prosecutor or the judge that your constitutional rights had been violated during your arrest.  For example, if the police seized the marijuana from your house without a search warrant, then the case could be thrown out of court.

Additionally, you may have the option to enter a plea agreement. When you plea to a case, you admit guilt and take responsibility for your action. However, you usually only go on probation and do not have significant jail time. This option will also involve you paying a fine and, in most cases, submit to random drug tests while on probation. In most cases, you will be on probation for 6 months or 12 months.

What have Florida Courts said about Possession of Marijuana?

Here are a few cases which explain Florida’s law regarding Marijuana. Please remember to speak to always speak to a qualified attorney regarding your case.


893.13. Prohibited acts; penalties. Fla. Stat. Ann. § 893.13 (West)

What is Pretrial Intervention in Florida?

Questions about your Florida Marijuana case?

Earle v. State, 745 So.2d 1087 (Fla.App. 4 Dist. 1999)

On June 21, 1998, Brian Green was driving a car owned by George Earle’s wife. Deputy Robert Kohl stopped the car on Interstate 95 in Florida for driving too closely. Earle was sitting in the front seat at the time of the stop. After a series of questions made to Earle and Green by Deputy Kohl, both men gave the deputy permission to search the vehicle. The deputy found eight packages of cocaine behind the rear passenger door panel.

George Earle and Brian were convicted of trafficking in cocaine. They appealed.     Earle and Green contended that the evidence at trial was legally insufficient to support their convictions. The cocaine trafficking statute prohibits one from “knowingly” being in actual or constructive possession of a certain quantity of cocaine. Earle and Green were not in actual possession. Therefore, the state must establish constructive possession. Constructive possession exists where a defendant does not have physical possession of contraband but (1) knows it is within his presence, (2) has the ability to maintain control over it, and (3) knows of the illicit nature of the contraband. There must be proof of evidence that there was actual knowledge of the contraband’s presence from which a jury might lawfully infer the defendant’s actual knowledge of contraband. Since the contraband was not in plain sight but was instead concealed behind a door panel, then there was no independent proof that either Earle or Green had actual knowledge of the presence of contraband. Earle and Green won their appeal.

K.A.K. v. State, 885 So. 2d 405 (Fla. 2d Dist. App. 2004)

K.A.K. (Juvenile) was driving her Dodge Neon with three friends and they were involved in a car accident. Hillsborough County Sheriff’s Deputy Brian Noland arrived to aid in the accident investigation. When K.A.K. opened the driver side door where she was sitting, Deputy Noland identified a glass or ceramic type of pipe often used to smoke illegal substances. He told K.A.K. that he had probable cause to search the vehicle. His search revealed a green leafy substance scattered in the driver’s seat and driver’s floorboard, along with other possible drug paraphernalia.


K.A.K. claimed she had no knowledge of the paraphernalia or any drugs. Furthermore, Deputy Noland did not immediately arrive at the scene to find the incriminating items. On appeal, K.A.K.’s counsel contended that her mere proximity to the illegal items is insufficient to sustain a conviction. The state must prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items, was able to exercise dominion and control over them, and knew of their illicit nature. There was no record evidence connecting the defendant to the contraband. Therefore, the conviction was reversed.


Butera v. State, 58 So. 3d 940 (Fla. 2d Dist. App. 2011)


Butera was a backseat passenger of a car that was occupied by two additional individuals. The car was stopped for a traffic violation. When the detective talked to the driver of the car, he could detect the odor of marijuana. The detective also conversed with the passenger in the front seat and she had told the detective that there were drugs in the back seat and that Butera was responsible for hiding the drugs. The detective then searched Butera’s person and did not find any contraband on Butera. The detective then searched the vehicle and found contents of crushed pills, contents containing marijuana, and contents contacting cocaine. The detective arrested Butera for possession of cocaine and marijuana, but did not arrest the other two individuals in the car. On trial, the detective testified that he only arrested Butera because of the proximity between Butera and the drugs that were found in the back seat. Butera was found guilty. Butera’s counsel appealed.


Since the cocaine and marijuana were not found on Butera’s person or in his exclusive possession, the evidence had to prove that Butera was in constructive possession of the contraband. However, the State only presented evidence of Butera’s proximity to the contraband. Afterall, a defendant’s knowledge of the presence of contraband and ability to control it cannot be inferred from the defendant’s proximity if the contraband is found in a location that is in joint, rather than exclusive possession of the defendant. Furthermore, there was no proof of evidence that what the passenger told the detective about Butera placing the drugs in the backseat was true. That was hearsay evidence that did not provide sufficient proof of Butera’a knowledge nor ability to control the contraband found in the backseat of the car. Butera won the appeal.


Hively v. State, 336 So. 2d 127 (Fla. 4th Dist. App. 1976)


Randal L. Hively was at Stone Apple Bar and Grill in Orlando, Florida when Deputies Lockaby, Verity, and Wilkerson observed Hively smoking a substance inside an car. The two occupants were requested to exit the car. The odor of marijuana was detected. The depuities observed  a pipe on the car’s console. Hively and passenger were placed under arrest. After the car was searched, two marijuana butts and a marijuana clip were found in the car. Hively was charged with unlawful possession of marijuana. Hively moved for a judgment of acquittal on the ground that the state had failed to present evidence sufficient to demonstrate that the defendant knew of the presence of the marijuana in the car. Hively was adjudged guilty and Hively’s counsel appealed.


The evidence indicated that the automobile did not belong to Hively but rather the passenger. There was also evidence showing that there were individuals other than Hively who had been in the car shortly before Hively drove the car. And finally, Hively stated that he did not see the bag of marijuana, the marijuana butts, or the marijuana clip. This raises the question that someone other than Hively could have placed the marijuana and paraphernalia in the car without Hively’s knowledge. Hively won the appeal.


Brown v. State, 8 So. 3d 1187 (Fla. 4th Dist. App. 2009)


Brown was charged with possession of cocaine with intent to sell and possession of another illegal drug. Two officers were present when a confidential informant placed a call to “a person of interest.” The informant asked for $100 worth of crack. The informant and person of interest agreed to meet at a nearby taco bell. The two officers drove to that taco bell and observed a man matching the description that was provided to them about the person of interest, later being the defendant, Brown. Brown was driving with a passenger in a rental car that was not assigned to Brown. The officers stopped Brown a few blocks away from Taco Bell. The officers stated that Brown appeared to be very nervous when they stopped him. The officers found $429 on Brown’s person when he was being searched at the scene and then, when he was searched again at the police station, he was found to have a baggie containing crack cocaine and a baggie containing powdered cocaine. When the car was searched, police found a jewelry box in the car’s center console. Inside the jewelry box, there were gold teeth caps and Xanax. Brown’s counsel moved for a judgment of acquittal on the possession of Xanax charge, arguing that there was insufficient evidence to establish that Brown had constructive knowledge over the jewelry box and its contents or the ability to exercise dominion and control over the drugs, jewelry box, and other contents. The motion was denied and Brown’s counsel appealed.


Since there was a passenger in the car, then it was jointly occupied and therefore, a defendant’s mere proximity to the contraband is insufficient to establish constructive possession. Also, the car was a rental. And evidence that Brown agreed to sell the informant crack does not tend to demonstrate that he had knowledge of Xanax in a rental car. Brown won the appeal on the charges of possession of Xanax.

If you have question about your Possession of Marijuana case please feel free to call my office in Orlando, Florida at (407)415-9626.