Criminal Defense
Since 1993
Since 1993
Location, Location, Location: Why Finding Drugs in Your Room Isn’t Enough to Convict
By: John Guidry
Possession of cannabis, possession of cocaine, possession of oxycodone. All these charges can only be proven by the old Real Estate slogan: Location, Location, Location.
The location of a drug determines whether it is “Actual” possession or “Constructive” possession.
- Actual Possession: Simple. The drugs are in your pocket, your hand, your bra, or your sock.
- Constructive Possession: This is the gray area. The drugs aren’t on you, but the State claims you knew they were there and had control over them.
It’s tough to prove constructive possession because the prosecution must show two things beyond a reasonable doubt:
- Knowledge of the presence of the drugs.
- Dominion and Control over them.
If the State proves you knew about the drugs but fails to prove you had control over them, that is a Not Guilty verdict.
Did the police find drugs in a car or house you share with others?
Mere proximity is not proof. Call John today at (407) 423-1117.
The Case: Evans v. State (The Passport Problem)
One great Florida case that illustrates this is Evans v. State, 32 So. 3d 188 (Fla. 1st DCA 2010).
- The Scene: Police searched Evans’ home, which he shared with others (Joint Occupancy).
- The Discovery: On top of Evans’ bed, they found a duffel bag.
- The Contents: Inside the duffel bag was Evans’ Passport and a small toiletry bag containing illegal MDMA and pills.
The State’s Argument: It seems like a slam dunk, right? The drugs were in his bedroom, on his bed, in a bag containing his passport. The prosecutor argued that Evans obviously knew the drugs were there because he put his passport right next to them.
The Ruling: “Inference” is Not Evidence
The Appellate Court disagreed and overturned the conviction. Why? Because the home was Jointly Occupied. When a space is shared, the State cannot just assume the drugs are yours because they are near your stuff. They need “Independent Proof.”
The Court’s Logic:
“The mere presence of the passport is no better proof of appellant’s knowledge of, and dominion over, the contraband.”
The court reasoned that the passport proved Evans owned the bag, but it did not prove when the drugs were placed there. Anyone else in the house could have dropped the toiletry bag into the duffel bag when Evans wasn’t looking. Without proof of when the items met, there was no proof of dominion and control.
John’s 2026 Update: Touch DNA & The “Roommate” Defense
Note: In 2010, Evans won because the timeline was unclear. In 2026, we use forensics to prove innocence.
1. The “Touch DNA” Defense In Evans, the argument was about the passport. Today, the State would swab the baggy for Touch DNA.
- The Strategy: If the police find drugs in a shared space (like a living room or a shared car console), we demand DNA testing on the packaging.
- The Argument: If your DNA is not on the baggie, but your roommate’s is, the “Constructive Possession” case falls apart. We argue that while you might have been near the bag, you never handled it.
2. The “AirBnB” & Roommate Reality In 2026, with the cost of housing, more people live with roommates or in transient housing than ever before.
- Joint Occupancy Rule: This rule is your best friend. If anyone else had access to the area (a girlfriend, a roommate, a guest), the State cannot convict you based on proximity alone. We use lease agreements and guest testimony to establish that the “zone of control” was polluted by others.
3. Digital Alibis In Evans, the court noted there was “no time frame” for when the drugs got there.
- Modern Defense: We use your Google Timeline or Apple Location Data. If we can show you hadn’t been in that bedroom for 48 hours, but a roommate was there all day, we can prove you lacked the ability to maintain “Dominion and Control” at the time of the search.
Don’t Let Them Guess You Into Prison
Just because it was near your stuff doesn’t mean it is your stuff. Constructive possession is a difficult charge for the State to prove, but you need an attorney who knows how to attack the link.
Call me at (407) 423-1117. Let’s disconnect you from the evidence.
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.