Driving Miss Mary

Other than the obvious, since Mary Jane (aka Cannabis, Marijuana, Weed, Pot, Ganja, etc.) is illegal and you can’t legally possess it in the State of Florida… since it is illegal… so you really just shouldn’t have it, there are two fundamental rules to abide by:

  • Never have it in your car
  • Never have it on your person

“But why?” you may ask. The reason is simple. Probable Cause. In Florida, if a law enforcement officer smells the “distinct odor of cannabis,” based on his personal “training and experience” of course, he is entitled to do the following:

  • Stop you
  • Search you
  • Search your car, including any “closed containers”
  • Search the passengers of your car

The Law in Florida is very clear in that it gives officers the right to do these things because Cannabis is an illegal substance.  The odor of burnt cannabis emanating from a vehicle generates probable cause for a police officer to both search the vehicle and arrest the occupant[1]s. The courts have even decided that it doesn’t matter if the officer smells burnt or even fresh cannabis, a smell is what will give you hell, so to speak.  They don’t need a warrant, they just need their nose.

“The sense of smell is perhaps not as keen in humankind as in other animals, but some odors such as burned cannabis are very strong and very distinctive. A person who is trained to recognize the odor of marijuana and who is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband.”[2]

But, what happens if there is cannabis in your car.. and there are other people in your car? Well, then there are some interesting issues specifically with something called “constructive possession.” Unless someone claims ownership or it is found directly on a person, if the substance is located in a common area, law enforcement (or the Prosecutor) has to go a step further and prove that it was either jointly owned, meaning that everyone present knew the pot was there, could control it, had ‘dominion’ over it, in order to pin it on someone[3].

For example, let’s say that the cops found the weed in the center console, in a container, and there was a passenger and a driver, but neither of them claimed the weed as their own. In that instance, law enforcement very well could make someone’s night less than fun by way of an arrest, but at the end of the day, the Prosecutor can’t make the case stick. The key to this is that the driver and the passenger use their Constitutional Right to Remain Silent, aka Miranda rights[4]. (And let’s not forget, these days you have to actually SAY[5] that you are using your right to remain silent in order to take advantage of it.)

This same example applies to scenarios where contraband is found and multiple people are around. A house, a hotel room, an apartment, etc. If a substance is located in a place that can’t be definitively proven that it belongs to a person, then ownership or possession is a significant issue.

But BEWARE, sometimes law enforcement can get tricky and fail to mention that passenger, or other person in the room, in a police report or notice to appear. So, if you are stopped, make sure that you get the contact information and identities of those individuals, or other proof that you weren’t alone. They could be the very critical key to defeating your case.



If you have any questions about possession charges or possible defenses, contact The Colbert Law Firm at 407-412-7234.



[1] U.S.C.A. Const.Amend. 4.State v. Sarria, 97 So. 3d 282 (Fla. Dist. Ct. App. 2012)

[2] State v. Jarrett, 530 So.2d 1089 (Fla. 5th DCA 1988); State v. Wells, 516 So.2d 74 (Fla. 5th DCA 1987); State v. Reeves, 488 So.2d 670 (Fla. 4th DCA 1986). State v. T.T., 594 So. 2d 839, 840 (Fla. Dist. Ct. App. 1992)

[3] A defendant will be found guilty of constructively possessing drugs or drug paraphernalia when the State proves beyond a reasonable doubt that the defendant knew of their presence, was able to exercise dominion and control over them, and knew of their illicit nature. D.M.C. v. State, 869 So. 2d 575 (Fla. Dist. Ct. App. 2003)

[4] https://tiffanycolbert.wordpress.com/2012/10/02/at-bat-for-miranda/

[5] http://www.huffingtonpost.com/2013/06/17/supreme-court-silence_n_3453968.html