Criminal Defense
Since 1993
Since 1993
If It’s in Plain View, Is It Yours? (Why “Seeing” Isn’t “Possessing”)
By: John Guidry
Yes, it is dumb to have illegal drugs. And it is even dumber to get caught with drugs laying out in the open, right there for everyone to see.
But as an Orlando defense lawyer, I don’t dwell too much on how people get themselves into such situations. I focus on how to defend them.
When drugs are in plain view for everyone to see, the State thinks they have an easy win. They assume that if you could see it, you must own it. They are wrong.
While plain view makes it easier to prove you knew about the drugs, it does not prove you had control over them.
Arrested because drugs were found in the open car?
Knowledge is not control. Call John today at (407) 423-1117.
The Case: Martoral v. State
Let’s look at just how tough it can be for the State to prove these cases by reviewing Martoral v. State, 946 So. 2d 1240 (Fla. 4th DCA 2007).
- The Scene: Martoral was in the driver’s seat of a truck.
- The Drugs: Marijuana was found in a compartment in the dash, in plain view.
- The Passengers: Other people were in the truck as well.
Because there were multiple people, this is a “Constructive Possession” case. The State had to prove Martoral had (1) Knowledge of the drugs and (2) Dominion and Control over them.
The Ruling:
The court overturned Martoral’s conviction.
They found that while the State proved Martoral knew about the drugs (because they were right in front of him), they failed to prove he controlled them.
“The concepts of ‘dominion’ and ‘control’ involve more than the mere ability of the defendant to reach out and touch the item of contraband… Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs.”
Police Misconception: Reachability $\neq$ Ownership
This is a common misconception among police officers. They think that just because an item is within reach (“I could grab it”), the defendant must have control over it.
The law says otherwise.
As the appeals court stated in Jean v. State, 638 So. 2d 995 (Fla. 4th DCA 1994):
“It is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it.”
Imagine getting into an Uber and seeing a baggie on the floor mat. You see it. You know it’s there. You could reach down and touch it. But do you own it? Do you control it? No.
You are just a passenger in a space where drugs exist.
The “Sloppy Police Work” Defense
In cases where there are multiple people present (Joint Occupancy), the State needs independent evidence to link the drugs to a specific person.
- Fingerprints: Did they print the baggie? (Rarely).
- DNA: Did they swab it? (Almost never).
- Confessions: Did they get a statement? (Only if you talked).
Often, sloppy police work means they skip these steps and just arrest everyone in the car. Without that independent evidence, the Martoral defense applies, and the case should be dismissed.
John’s 2026 Update: The “Hemp” Factor
Note: In 2026, “Plain View” is even weaker than it was in 2007.
1. The “Green Leafy Substance” Problem
Today, legal Hemp and illegal Cannabis look and smell exactly the same.
- If an officer sees a baggie of green plant material in “plain view” on the dashboard, he cannot immediately know it is illegal contraband.
- We argue that seeing a plant is no longer “probable cause” because it is just as likely to be legal CBD flower.
2. Body Cams vs. “Plain View”
Police often claim an item was in “plain view” to justify a warrantless search.
- The Camera Don’t Lie: In 2026, we pull the body cam footage. We often find that the officer actually had to open a console, lift a paper, or shine a flashlight at a specific angle to see the item.
- If they had to manipulate the scene to see it, it wasn’t in plain view, and the search may be illegal.
3. Touch DNA
Forensic technology has advanced. If the State claims you “controlled” that baggie on the dashboard, we now demand they test it for Touch DNA. If your DNA isn’t there, but your friend’s is, that is powerful proof of innocence.
Don’t Let Them Assume Your Guilt
If you were arrested because something was “within reach,” do not accept the officer’s assumption as law. We make them prove control.
Call me at (407) 423-1117. Let’s look at 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.