Why “It’s Not Mine” Is Your Worst Defense

On behalf of Eisenmenger, Robinson & Peters, P.A. posted in Criminal Law on Thursday, May 21, 2015.

Most people are confused by the legal definition of possession, particularly when it comes to possession of controlled substances.

Possession is knowledge and control, not ownership. If you are the driver of a car you are “in control” and if you have knowledge that the car, or a passenger in the car, is carrying an illegal controlled substance, you are in (constructive) possession of that controlled substance. The actual ownership of the illegal drug is irrelevant.

Constructive possession means that the item is not actually on your person. If the item is not actually on your person, knowledge of its presence cannot be inferred, but rather must be proven by actual evidence. The best evidence of knowledge is a statement by a suspect. Therefore, the police will often suggest that if you (the suspect) just tell them who the owner is, all will be well. NOTHING COULD BE FURTHER FROM THE TRUTH. Once you acknowledge to the police that you know who owns something, you are in the same breath acknowledging that you knew the item was there. In other words you are supplying the one piece of information that the police need to make their case. SILENCE is your best option when questioned by the police. Better yet lawyer up! That’s what cops do when they are being investigated. (I know I have represented a number of them.) The United States Supreme Court recently ruled that silence alone (when being questioned by the police) is not enough to invoke your Fifth Amendment rights, so my advice is ask for a lawyer and don’t say anything else until you have spoken to a lawyer.

Actual possession is when something is found on your person. Knowledge of its presence CAN be inferred. But SILENCE and/or lawyering up is still your best option. As a wise man once said, “No one ever listened himself into trouble.”

The Florida Association of Criminal Defense Lawyers (FACDL) had a clever t-shirt a few years ago, “JUST SAY NO!” My advice is NEVER waive any of your rights. The police will try to make you feel guilty about saying no when they want to search your car or question you about their suspicions. They often confront people with, “Do you have something to hide?” The correct answer is “No, I don’t have anything to hide, but I have plenty to protect.” If they say they are going to get a warrant, tell them to go ahead. Do not let the police take shortcuts with your life. The police always insinuate that it will help your case if you cooperate with their investigation. In 38 years of practice I have never had a client who benefited from “cooperating” with the police, but I have had many who “cooperated” themselves into prison. Remember making the police follow the law is no different than the police asking you to follow the law. When the police ask you to agree to a search without a warrant, or to talk to them without an attorney, or to agree to a test of blood, breath or urine without probable cause – JUST SAY NO!

Don’t take legal advice from the police, it’s not their job – their job is to build a case against you! Get legal advice from a lawyer and don’t make any decisions or agree to do anything until you have been given an opportunity to speak with an attorney. If the police don’t want you to talk to an attorney that should raise a giant red flag for you. The more they try to talk you out of it, the more you should stand firm and insist on your right to speak with an attorney!