Criminal Defense
Since 1993
Since 1993
The “Throw Down” Trap: Why Proximity to Marijuana Isn’t Always a Crime in Orlando
By: John Guidry
Let’s face it, Americans like their drugs—especially weed. For some folks, their entire existence seems to revolve around it. So, it can be tough for them to “just throw it away” when they see the cops approaching. But that split-second decision to toss a baggie often leads to our real-life example of the day: F.Q. v. State of Florida, 98 So. 3d 783 (Fla. 4th DCA 2012).
(FYI: In juvenile court, we use initials like “F.Q.” to keep a kid’s name secret—though the consequences of a conviction are very much public and very much real.)
The Facts of the “Abandoned House” Sting
F.Q. and his friend were chilling at an abandoned house, which is basically a magnet for both curious kids and bored cops. Suddenly, the police appeared out of nowhere. In the ensuing panic, F.Q. allegedly threw down one baggie of marijuana, and his friend allegedly threw down another two. Total baggies recovered: three.
F.Q. was arrested and charged with possession. He took the case to trial, but the prosecution made a classic “blabbing” error. They only admitted one of the three baggies into evidence.
The Failure of Proof: While the State proved that the one baggie in court was indeed weed, they never proved which baggie was dropped by F.Q. Was the baggie in evidence the one F.Q. dropped, or was it one of the two his friend dropped? No officer could testify to that. The appeals court threw out the conviction, ruling that the State failed to link F.Q. to that specific baggie.
Caught in a “group arrest” where drugs were found nearby? In 2025, proximity alone is not enough to put you in a cell. Call John Guidry at (407) 423-1117.
Constructive Possession: A Favorite Legal Battle
We’ve talked time and again about how difficult it is to prove constructive possession, so there’s no need to go into great detail—but the court in F.Q. cited a favorite case of mine: Isaac v. State, 730 So. 2d 757 (Fla. 2d DCA 1999).
In Isaac, two guys were passing a baggie of crack back and forth. When a cop approached, the baggie hit the dirt. The court held that “mere proximity to contraband is not enough to establish dominion and control.” To convict, the State must prove you had conscious and substantial possession, not just that you were “nearby.”
The “Hypothesis of Innocence” Rule: In Isaac, the court noted that the State failed to exclude every “reasonable hypothesis of innocence.” Maybe the guys just found the baggie there and were examining it? Maybe the other guy brought it and was just showing it to Isaac? If those possibilities exist, the State hasn’t met its burden.
The 2025 “Plain Smell” Revolution
If you think the “throw down” defense is strong, you need to know about the massive shift that occurred on October 1, 2025. In the landmark case Williams v. State (No. 2D2023-2200), Florida’s appellate courts finally admitted what I’ve been saying for years: The odor of marijuana alone is no longer enough for probable cause.
Because legal hemp and medical marijuana smell identical to illegal “street” weed, a cop can no longer claim their “super-sensitive snout” gave them the right to search you or your car based on smell alone. In 2025, if they don’t see the baggie or have a confession, that search is likely “insane” and unconstitutional.
John’s Takeaways
- Proximity is Not Possession: If you are with a group and drugs are found on the ground, the State must prove which specific person had “dominion and control.”
- The Evidence Chain: If the State can’t link a specific baggie to a specific defendant, it is a total failure of proof.
- The “Examining” Defense: As seen in Isaac, simply looking at something you found on the ground is not “possession.”
- 2025 Odor Update: If a cop uses “I smelled weed” as their only reason to search you after you “threw something down,” we can likely get that evidence suppressed.
- Fingerprints are Rare: Even if they find your prints, that doesn’t prove you “possessed” it with intent—it might just prove you touched it for a second.
The justice system is harsh, and it’s “sad but true” that many kids get a criminal record just for being in the wrong place at the wrong time. I’ve been defending Central Florida citizens against these “proximity” charges since 1993. Whether you’re in Orange, Seminole, or Osceola County, if the cops found a baggie and can’t prove it was yours, let’s fight it.
Facing possession charges? Call John at (407) 423-1117.
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.