In recent months, I have discussed how challenges have been raised regarding Florida Statutes Section 893, which makes possession of controlled substances illegal. The problem with 893 is that the law does not require the prosecution to prove that the accused knew they were in possession of an illegal substance. The prosecution need only prove that the accused was in possession of a substance, and that substance was an illegal one.
First I discussed how a federal judge deemed the law unconstitutional as it did not require the State to prove the element of knowledge. The law, the judge stated, was fundamentally unfair as people who may have been unknowingly in possession of drugs (carrying your friend's backpack, for instance) could be found guilty of drug possession under the statute.
A Miami-Dade judge followed by declaring the law unconstitutional as well, which resulted in the dismissal of several drug cases in his division. His reasoning followed that of the federal court's.
So...is Section 893 unconstitutional?
No, says the 3rd District Court of Appeals, or 3rd DCA, the appellate court for Miami-Dade County. In a new opinion released today, Little v. State, the court affirmed the denial of a post-conviction claim in which the defendant, having been convicted of drug possession, was seeking to have his conviction vacated due to the unconstitutionality of the drug law.
The 3rd came right out and spoke their minds - 893 is not unconstitutional and the State does not have to prove knowledge in drug possession prosecutions.
This is troubling as our appellate court does not think that it is necessary for the prosecution to have to prove that somebody has knowledge of the substances that they are carrying. As the law exists right now, you could borrow your friend's car without knowing that your friend has an ounce of cocaine inside of his glove compartment. You don't realize that your friend's brake light is out, so when an officer pulls you over, you open the glove box to recover the registration. Only then does the officer see the cocaine in plain view. You are arrested and charged. Now you may raise the defense of lack of knowledge at trial, but you are still subject to prosecution. You do not necessarily get a pass just because the prosecutor can't prove that you knew it was there. If the prosecutor is reasonable, they may decline to file charges. But the decision rests in the hands of the prosecutor.
I feel that this newly released opinion is a sign of things to come.