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Drugs Found Nearby Not Enough to Convict

Drugs Found Nearby Not Enough to ConvictI know, I know. You don’t hang out with people that have drugs nearby. Fair enough, but just in case you’re not aware of this–drugs are everywhere. This is 2012. Lots of people smoke weed. Lots of people use prescription medications. Lots of people drink alcohol (yes, it’s a drug too!). Now, its common knowledge that the presence of drugs can lead to an arrest for possession of marijuana, or possession of a controlled substance, depending, of course, on the type of drug possessed. The massive amount of drugs in Orlando also leads to a massive number of arrests for possession. The problem is, many of these arrests are based on nothing more than a citizen’s proximity to a drug. Can being close to a drug get you arrested?

Well, if someone nearby has drugs on them and sees the police coming–are they going to stick around to find out what happens? No. But you, on the other hand, not realizing that drugs are present, may go ahead and happily greet the police, only to discover later that the persons that just hastily left did so to avoid a possession charge. So, does the fact that a citizen is in close proximity to a drug necessarily mean that they are guilty of possessing that drug? Believe it or not, this sort of thing happens all the time, let’s take a look at a recent example.

The case is G.G. v. State, 84 So.3d 1164 (Fla. 2nd DCA 2012). G.G. was upset with his parents, so he ran off into a nearby public park. Because the weather forecast for the night called for almost freezing temperatures, the police decided to make some attempts to locate G.G. Eventually, they found him sleeping in a park, with a drawstring pouch about a foot from him. The police picked up the pouch, and discovered weed and paraphernalia inside. You know the rest of the story, G.G. was arrested for possession of marijuana and possession of drug paraphernalia.

G.G. never admitted to the cops that the pouch containing cannabis was his. There was no independent evidence which would link the pouch to G.G., other than the fact that it was found less than 12 inches from him. The prosecutors convicted G.G. of both charges, alleging that the drugs were found within his “ready reach”.

Now, this may be a news flash for some of you so brace yourself for the truth–having drugs within your ready reach is not enough to prove possession. The reason for this is simple. Possession requires proof of two things: (1) knowledge of the presence of the drugs, and (2) dominion and control over the drugs. Did anything the police presented as evidence against G.G. show that he even knew the drugs were there? No. Can this knowledge be inferred because he was so close to the drugs? No way. So, the analysis should end there. It should be a Not Guilty verdict right here, but for the sake of argument, let’s assume that the government proved G.G. knew drugs were within inches of his body–could they still convict? Nope. Why?

Well, the Second District Court of Appeals said it best, finding that prosecutors failed to prove any “circumstance that might have suggested that G.G. had control of the bag or its contents, e.g., an admission, his fingerprints on the drugs or paraphernalia, or the presence of other of his possessions in the bag.” Id. Notice what the court is REALLY saying here: to convict on a possession charge, you must have evidence like fingerprints,or an admission, or something to tie the citizen to the drugs. Duh! Now, do you really think the police ever do that much “police work”? Who has the time to take fingerprints these days, it’s soooooooo time consuming! Also, that fingerprint dust gets messy….

The appeals court seemed a bit perplexed that G.G. was convicted given the fact that not one prong of a possession charge proven, exclaiming that “[t]he upshot is that the State’s evidence failed to show that G.G. was even aware that the contraband was nearby, let alone that he had control over it. For this reason, the evidence was insufficient to prove that G.G. committed the possession offenses”. Id. Its so simple, really, and yet the case had to go all the way up to the appeals court to be corrected. Government efficiency at its finest–our taxpayer dollars hard at work.

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