JOE NATHAN GAYNUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Gaynus appealed convictions for drug possession with intent to sell and possession of paraphernalia, arguing insufficient evidence of constructive possession. The Florida Fourth District Court of Appeal reversed, holding that the State failed to establish either exclusive possession of the premises or actual knowledge of the drugs, which are required elements for constructive possession in a joint-occupancy setting.
The court reversed the convictions, holding that when premises are jointly occupied, the State must establish either the defendant's exclusive possession of the area where drugs are found or prove actual knowledge of the contraband through direct evidence or incriminating statements and circumstances. Absent such proof, a constructive possession conviction cannot stand.
[1] Constructive possession requires knowledge of the controlled substance's presence and the ability to maintain control over it.
[2] Where premises are jointly occupied, knowledge of the presence of a controlled substance and the ability to control it must be proven, not inferred.
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Join FLexlaw to unlock all legal intelligence“Constructive possession exists where the accused, without physical possession of the controlled substance, knows of its presence on or about his premises and has the ability to maintain control over said controlled substance.”
Defines the legal standard for constructive possession that applies in this case
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Join FLexlaw to unlock all legal intelligencePolice executed a search warrant at a residence jointly occupied by appellant and at least three others. Appellant was present but not the owner. Drug…
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MOORE, Judge.
Defendant appeals convictions for possession of heroin with intent to sell, possession of cocaine with intent to sell, and possession of paraphernalia. The State relied on a constructive possession theory to prove its case. Appellant contends that the evidence is insufficient to establish constructive possession. We agree with this contention and reverse.
The police executed a search warrant at a residence jointly occupied by appellant and at least three others. Appellant was not the owner of the premises, and although he was present at the time, others were also present. Drugs were discovered in a closet in the northwest bedroom and in a closed briefcase in the kitchen. The alleged paraphernalia was found in kitchen cupboards and in the pantry.
Constructive possession exists where the accused, without physical possession of the controlled substance, knows of its presence on or about his premises and has the ability to maintain control over said controlled substance. Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976). As stated in Hively at 129:
If the premises on which the controlled substance is found is in the exclusive possession and control of the accused, knowledge of the presence of said controlled substance on the premises, coupled with accused’s ability to maintain control over it, may be inferred. If the premises on which the controlled substance is found is not in the exclusive but only in the joint possession of the accused, knowledge of the presence of said controlled substance on the premises and the accused’s ability to maintain control over it will not be inferred but must be established by proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the controlled substance on the premises, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the controlled substance on the premises.
In the instant case, there is no evidence that appellant had exclusive possession of any portion of the premises where the drugs or alleged paraphernalia were discovered. Likewise, there is no evidence linking appellant to the briefcase. Lastly, there is no evidence that appellant had actual knowledge of the contraband nor is there any evidence of incriminating statements or circumstances from which the jury might have inferred such knowledge. Thus, the instant convictions must be reversed. The case is remanded to the trial court with directions that the defendant be discharged.
REVERSED AND REMANDED.
HERSEY and GLICKSTEIN, JJ., concur.
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Brown v. State, 412 So. 2d 420 (Fla. 4th DCA 1982)…was his marijuana; Shad v. State, 394 So. 2d 1114 (Fla. 1st DCA 1981). Marijuana was discovered in trunk of automobile in which defendant was a passenger concealed under a blanket on top of which were clothes belonging to defendant; Gaynus v. State, 380 So. 2d 1174 (Fla. 4th DCA 1980). Defendant did not own but occupied premises with others where drugs or paraphernalia were discovered in a bedroom, briefcase, kitchen cupboards and pantry; Thompson v. State, 375 So. 2d 633 (Fla. 4th DCA 1979). Defendant and two…
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Smith v. State, 519 So. 2d 750 (Fla. 4th DCA 1988)…, generally, Brown v. State, 428 So. 2d 250 (Fla.1983), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Richardson v. State, 488 So. 2d 661 (Fla. 4th DCA 1986); Wale v. State, 397 So. 2d 738 (Fla. 4th DCA 1981); Gaynus v. State, 380 So. 2d 1174 (Fla. 4th DCA 1980); Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976); State v. Hayes, 333 So. 2d 51 (Fla. 4th DCA 1976); Willis v. State, 320 So. 2d 823 (Fla. 4th DCA 1975); Williams v. State, 489 So. 2d 1198 (Fla. 1st DCA), rev. denied, 500 So.…
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