“It Wasn’t Mine”: Why Touching Drugs Doesn’t Always Mean You Possess Them (And Why Sometimes It Does)

By: John Guidry

There are lots of grey areas in criminal defense work. For example, our concept of “Possession.” We have Possession of Cocaine, Marijuana, Firearm by a Convicted Felon, Fake ID… the list goes on. Yet, the crime of possession often gets complicated fast.

The Mailman Paradox: People possess things and have no idea what they’re possessing. If you are accused of drug trafficking via express mail, chances are your mailman possessed the package full of drugs before you did.

• The Question: Why don’t we charge the mailman?
• The Answer: Because he lacks Knowledge. To possess something illegally in Florida, you must have three things: Knowledge, Dominion, and Control.

Did the police find drugs in a house you just visited?

Mere presence is not possession. Call John today at (407) 423-1117.

The “Pass-Through” Defense: Hamilton v. State

What if your friend asks you to pass a baggie to a buyer? You know it’s illegal. You are holding it. Are you guilty? In Hamilton v. State, 732 So. 2d 493 (Fla 2d DCA 1999), that’s exactly what happened.

• The Scene: Hamilton was a passenger. His friend (the dealer) handed him a baggie of cocaine to pass to a buyer in another car. Hamilton passed the drugs and handed the $60 cash back to his friend.
• The Arrest: It was a sting. Hamilton was arrested for Possession and Delivery.

The Ruling: Not Guilty. The Court threw out the conviction.

“The mere fact that Hamilton passed the cocaine from one party to another… did not establish that he had dominion and control over the cocaine.”

The “Temporary Possession” Rule (Campbell v. State): The Florida Supreme Court has held that “temporary possession… for the sole purpose of verification or testing” (or in this case, passing) is not legal possession if the owner is present. Hamilton was just a human conveyor belt.

The “House Key” Trap: Bartolone v. State

Now, let’s look at a case where the courts got it wrong. In Bartolone v. State (2021), the police raided a house after months of surveillance.

• The Facts: Bartolone was seen outside the house many times, but never inside. He had a key to the front door.
• The Raid: Inside, police found 162 grams of cocaine, 17 pounds of weed, and 1,000+ vape carts.
• The Catch: Bartolone wasn’t in the house. He had no drugs on him. He didn’t pay the utilities.

The Fingerprint Problem: Police dusted the house like a murder scene. They found Bartolone’s fingerprints on:

1. A grinder.
2. Vape cartridges.
3. A trash bag with residue.

The Ruling: Guilty. The Court upheld the conviction, arguing that the Fingerprints + The Key proved he had dominion and control over the stash.

My Take: This decision is troubling.

• Hamilton held the actual drugs and money but was Not Guilty.
• Bartolone never touched the trafficking amounts (no prints on the cocaine), but because he had a key and touched a grinder, he is Guilty of everything in the house? It seems the “substantial possession” rule was ignored here. Having a key and touching a vape pen should not make you the Kingpin of a house you don’t own.

John’s 2026 Update: Digital Keys & Touch DNA

Note: In 1999, “Control” meant holding the bag. In 2026, “Control” means your phone connected to the Wi-Fi.

1. “Digital Dominion” (Wi-Fi & Bluetooth) In 2026, prosecutors don’t need to see you inside the house.

• The New Evidence: If your phone automatically connects to the “Trap House” Wi-Fi, or if your Bluetooth pairs with a speaker inside, they argue this proves Constructive Possession.
• The Defense: We argue that Wi-Fi range extends to the street. Connecting to a network doesn’t mean you control the drugs in the bedroom.

2. Touch DNA > Fingerprints In Bartolone, they relied on fingerprints. Today, they use Touch DNA.

• The Risk: You can leave DNA on a Ziploc bag just by shaking hands with the person who bought it.
• The Strategy: We challenge the “Transfer” theory. Finding your DNA on a moveable object (like a grinder) proves you touched the object, not that you possessed the drugs inside it at the time of the crime.

3. The “AirBnB” Defense With the rise of short-term rentals, many people have “keys” (codes) to houses they don’t live in.

• The Argument: Just because you have the door code doesn’t mean you own the stash left by the previous guest. We use rental records to show “Joint Access,” which legally weakens the State’s claim of “Exclusive Control.”

Possession is 9/10ths of the Law (But Knowledge is Everything)

If the State is trying to link you to drugs found in a house or car you don’t own, don’t let them use “proximity” as proof of guilt. We know the difference between being near drugs and possessing them.

Call me at (407) 423-1117. Let’s break the chain of custody.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.