You may have have been arrested for criminal possession and are wondering just how you could have been charged when you didn’t have the items in your possession at the time.
We at the law offices of Albert Quirantes - your Miami Criminal Defense Lawyers, can explain how the law works and how we can defend you. Under Florida law, you can be charged for two types of possession: actual possession and constructive possession.
If you have been arrested for actual possession, it means that police have discovered illegal items, such as a controlled substances or drugs on you. This might mean in a pocket, in your hands, in a bag, around your waist or inside your body (e.g. swallowed inside a flexible plastic container).
Actual possession is easier for prosecutors to prove and harder for criminal defense lawyers like us to defend, although that doesn’t mean it’s impossible.
Constructive possession is harder to define. It means that the illegal item was found in a location that you allegedly had control over and access to, even if it was not on your person.
Constructive possession is much harder for prosecutors to prove and easier for us to defend. Don’t forget the responsibility lies with prosecutors to prove ‘beyond reasonable doubt’ that you committed the offense of possession.
If you have been arrested for possession of anything illegal and don’t understand why you have been arrested or do not believe that the alleged items belonged to you, the best initial advice is for you to remain silent until you talk to a criminal defense lawyer. This is your right under the Fifth Amendment of the United States Constitution.
If you get angry or start to answer questions without talking to a lawyer first, it is more likely that you will say something that you might regret later on, especially if you are frightened, flustered or completely surprised about what has occurred. You can also ask for a lawyer and that invokes your sixth amendment right to an attorney.
Don’t speak to anyone before first being allowed to speak to your attorney. In fact, your attorney will probably stop the questioning and may decide to speak to law-enforcement for you. Whatever your lawyer says cannot be used against you in court but whatever you say will definitely be used against you in one way or another. So the best thing you can do is to not speak to the police or anyone from the government without first speaking to your lawyer.
Defense against a charge of possession
1. If the allegedly illegal items were found as part of a search, was the search authorized? Did the police officer who carried out the search have a search warrant?
Generally, apart from a small number of exceptions, a search of your property or person without a warrant is a violation of your rights under the Fourth Amendment, which provides anyone in the United States of America with a guarantee that their privacy should be respected. The fourth amendment of the United States Constitution contains the right to be free from unreasonable searches and seizures by the government.
As criminal defense attorneys, we can determine whether an arrest after a search that was not authorized has violated your Fourth Amendment rights and argue that any evidence obtained as a result of that search should be “suppressed” or excluded from consideration at trial.
2. An arrest after a legitimate search may still be contested if it can be argued that the property where the illegal items were discovered did not belong to you, or it was shared with other people, or other people had access to it without your knowledge.
Take a hypothetical example. Say you gave someone a lift in your car. Unbeknown to you, this person leaves a small bag of cocaine behind in the front passenger seat. You get stopped for a random vehicle license check an hour after the passenger got out of your car. The officer spots the bag inside your car and asks to see it.
You comply, not thinking anything of it. The officer suspects that it is an illegal drug and asks you to accompany him or her to a police station. There you are arrested for possessionof a controlled substance. However, as far as you are concerned, the drugs weren’t yours and you didn’t know they were there.
It’s a very worrying situation, but the onus is on the prosecution to prove that you knew the drugs were there and that you had control over their presence. It’s our job to defend you against an unjustified charge. Again, if something like this does happen, give your name and address and then say politely that you want to see your lawyer before you answer any other questions.
Albert Quirantes: Your Miami Criminal Defense Lawyer & DUI Lawyer
For over 30 years, Miami criminal defense attorney Albert M. Quirantes has been aggressively and zealously defending the rights of those accused of felony and misdemeanor crimesthroughout South Florida. With his dedicated team, reasonable legal fees, and a well-earned reputation for challenging prosecutors at every turn, he has protected over 8,000 clients during some of the roughest times of their lives.
Increase your knowledge! If you want to know more about how to resolve the problems you face when charged with a criminal offense in Florida, then you can follow Miami Criminal Attorney Albert M. Quirantes on Facebook, Twitter, or Google+.
If you have been arrested and charged with a crime, please call us today at (305) 644-1800 or fill out our online form to arrange for your free, confidential initial consultation.
If you have any questions about this or any other criminal accusation, call Miami Criminal Defense Lawyer Albert Quirantes at: (305) 644-1800 or visit our homepage www.CriminalDefendant.com for a direct link to the office or a text message or a map and directions to our office.