Possession of Drugs Inside a House: Actual Versus Constructive

           In the case of Corey Bennett versus the State of Florida, Mr. Bennett was convicted of the crimes of trafficking in cocaine, possession of marijuana, and possession of drug paraphernalia based upon the following set of facts:

          "Bennett was wanted on felony charges, although no arrest warrant had been issued. A Tampa police officer received a tip that Bennett could be found at a certain residential address. The tipster reported that Bennett was outside the front of the residence, possibly participating in a drug deal.

          At the given address there was a main house in the front and a second dwelling, a cottage of sorts, in the rear. Bennett's grandmother and some other family members lived in the main residence. The [prosecutor] presented no evidence to show who lived in the rear building, which was a small, one-bedroom dwelling with a living room, kitchen, and bath.

          As the officer made his way to the location, the tipster reported that Bennett had run to the rear building. When the officer arrived, he proceeded to the cottage and knocked on the door. Receiving no response, he then walked around the structure and observed a broken window. He looked through the window into the bedroom and spied Bennett peeking out from the adjoining bathroom. The officer announced his presence and his intention to arrest Bennett. Bennett refused the officer's order to come out, whereupon the officer climbed through the broken window and made the arrest.

          After waiving his [Miranda] rights, Bennett first told the officer that he did not live in the cottage and did not know who did. He claimed that he had found the door open and had run inside. After the officer mentioned the possibility of burglary or trespass charges, Bennett said that he stayed there sometimes. The officer asked for and received Bennett's permission to search the premises.

          The search revealed contraband in the living room and bedroom. On the lower shelf of an entertainment center in the living room, the officer found two slabs of crack cocaine, a baggie of marijuana, and a digital scale and razor blade with cocaine residue. In the bedroom, a second officer found an open cardboard box full of men's clothing. Also inside was a small plastic sandwich bag box, and it contained seven slabs of crack cocaine. A man's shirt was lying draped in or across the top of the cardboard box, and Bennett's driver's license was found in the shirt pocket. There was also a letter, addressed to Bennett, somewhere in the cardboard box."

           Bennett appealed his convictions, and Florida's Second District Court of Appeal reversed his convictions for the following reasons:

          1.  Bennett did not physically possess either the drugs or the drug paraphernalia.

          2.  Neither did Bennett constructively possess either the drugs or the drug paraphernalia.

          3.  In order to prove constructive possession, the prosecutor had to show that Bennett knew of the presence of those illegal items and that he had the ability to exercise "dominion and control" over them.

          4.  Although one could reasonably conclude that Bennett knew of the illegal items in the living room because they were in plain view, that fact alone does not support an inference that he had control over them unless he also had control over the premises themselves.  

          5.  But there was no evidence showing that Bennett had control over the premises.  At best, the evidence showed that he was simply a visitor.  Nor was there any evidence that Bennett made incriminating statements when he was arrested, there was no eyewitness testimony, and there was no scientific evidence such as fingerprints linking him to the drugs or the drug paraphernalia.

          6.  Although the location of Bennett's driver's license and the letter addressed to him might be consistent with his having knowledge of the drugs as well as dominion and control over them, it is equally consistent with the reasonable conclusion that "the drugs were in the possession and control of the owner or another occupant of the premises and that Bennett simply threw his belongings over or into the open cardboard box without knowing of the drugs inside."