Constructive Possession and the Automobile Exception in Florida Criminal Defense Cases
Even the most conscientious motorists in Florida have been pulled over by law enforcement officers at one time or another. Getting pulled over does not mean that you are a bad driver or even that you are a terrible person; it merely means that you have done something wrong while you were driving.
An encounter with a police officer during a car stop usually ends peacefully and without much difficulty. Car stops go much easier for the driver and the passengers in the car if everyone is polite, stays as calm as possible, and remembers that, most often than not, the police officer is just doing the job he or she was sworn to do. One way to ensure that a police officer will increase the level of intrusion into your privacy is to mouth off to the officer, be disrespectful, or appear to be overly nervous.
The experience of getting pulled over is riddled with fear and anxiety. The driver's breathing gets faster, and the driver tends to talk more, be very apologetic, and extremely cooperative. In contrast, others might become mouthy or combative. On many occasions, people will become clumsy and cannot think straight. Those reactions are normal responses to a police encounter when someone has nothing to hide.
The officer who pulls a car over must have evidence of wrongdoing before signaling the car to stop. Any motor vehicle infraction will suffice. Even simple issues like an expired inspection sticker, a malfunctioning taillight, or a plate light that no longer works are enough reasons for a police officer to stop a car.
The legal standard referred to in Florida courts that justifies a law enforcement officer's decision to pull a car over is called reasonable suspicion. Reasonable suspicion has to be more than a guess or a simple hunch. The officer must have a specific and articulable reason to pull a car over. That is why any minor motor vehicle infraction, even as one as slight as a malfunctioning taillight, allows a police officer to pull over a car because driving with a broken taillight violates Florida law.
A police officer must let the driver go as soon as the officer's investigation is complete. In other words, the police officer cannot force you to stay at the scene without an additional reason. The officer cannot contrive a reason to detain the driver any longer than necessary or reasonable. Similarly, the police cannot search a car without justification.
A law enforcement officer does not need to obtain a search warrant before searching a car. Legal scholars refer to this construct as the "automobile exception" to the Fourth Amendment's prohibition against warrantless searches. Under the automobile exception, the officer can perform a limited pat search of the driver and passengers for weapons if the police have reasonable suspicion to believe someone in the car is armed and dangerous. The scope of the search is not limited to the driver and passengers. Instead, the officer can search the area where a person could reach or conceal a weapon such as a car's glove box or center console.
A seasoned police officer understands what to look for when someone in a car could have just hidden a weapon. A police officer who pulls over a car will watch the occupants closely to ensure that the officer is safe. It is extremely easy to launch an attack with a deadly weapon concealed inside a car. That is why stopping cars is the most dangerous function of a police officer's job. Consequently, officers do not need to gamble with their safety. Instead, they can look for furtive gestures, which are quick and sudden movements by one of the occupants of the car, which leaves the officer with the impression that the person who moved concealed a weapon.
The law enforcement agent can remove the driver and occupants from the car and then pat down the car for weapons if an officer sees a furtive gesture. The officer can seize any items of contraband the officer observes during the pat frisk for weapons. This finding could give the officer probable cause to search the entire vehicle.
Police never ignore what they see in the open. As long as the officer has the right to be where he or she is when the officer observes the contraband, then the officer may seize the contraband. The doctrine that allows police to seize contraband the officer observes is called the plain-view doctrine.
Police officers who have nothing more than a hunch that a person is involved in a crime could ask the driver for permission, or consent, to search the vehicle. Consent must be knowingly and voluntarily given. However, police officers have away oh persuading people to consent by the tone of their voice and the use of certain words, which indicates to the average person That the police officer is going to search the car anyway.
Possession of weapons and possession of narcotics, for example, may be proved by either of two legal theories. Under Florida law, possession may be actual. Actual possession is the physical manipulation of an item, such as holding it in one's hand or keeping it in a pants pocket.
The other theory under Florida law is called constructive possession under 2019 Florida Statutes Chapter 893 Section 13. Constructive possession requires proof that the person has the intent and the ability to exercise complete dominion and control over the item of contraband. The person accused of possession must know that the item is there as well to be guilty of constructive possession.
Constructive possession frequently arises when police search motor vehicles for contraband. If two people are in a car and the officer locates a weapon in the glovebox, then the officer could charge the driver and passenger with unlawful possession of the weapon. Although constructive possession of an item could be joint, the state must prove that both driver and passenger knew that the weapon, for instance, was present and that the driver and passenger had the intent to control the item to obtain a conviction for the charge of unlawful possession of a weapon.