Florida High Court Upholds Unique Drug Law

Florida will remain one of only two states that incarcerates people for drug possession without proving they knew what they were carrying was illegal.
by | July 13, 2012

By Jane Musgrave, The Palm Beach Post, Fla.

Florida will remain one of the only two states in the country that sends people to prison on drug possession charges without first proving the person knew what they were carrying was illegal.

In a decision that will assure thousands will remain behind bars on a charge that many defense attorneys and some judges insist is blatantly unconstitutional, a divided Florida Supreme Court on Thursday upheld the state's drug possession law.

"There is no constitutional right to possess contraband," Justice Charles Canady wrote for the majority. "Nor is there a protected right to be ignorant of the nature of the property in one's possession."

Palm Beach County State Attorney Peter Antonacci cheered the ruling, as much out of relief as a belief that the high court made the right call. "It would have been a substantial mess if it had gone the other way," he said.

Had the court agreed with those who believe the law shatters the constitution's bedrock principle of innocent until proven guilty, Antonacci's office would have been forced to review the cases of scores of people awaiting trial on charges of drug possession.

Further, thousands of people, now serving sentences up to and including life, would have appealed for release.

About a third of all people charged with felonies in Palm Beach County are accused of violating the law, which covers the possession, delivery, sale or manufacturing of illicit drugs, records show.

That an unfavorable ruling would have created a logjam in the courts and a headache for prosecutors is irrelevant, said West Palm Beach attorney Nellie King, immediate past president of the Florida Association of Criminal Defense Lawyers.

"This is a sad day for the rule of law in this country and Florida ought not be proud," she said. "There is no way to sugarcoat the import of this decision. It presents an opportunity for the unbridled arrest of innocent citizens for their mere proximity to narcotics -- no knowledge of the illicit nature of the substance required."

She said she worries about what will be next. If the state can successfully prosecute people for illegally possessing, say, Oxycodone, even though they thought it was aspirin, she said she questions what will stop lawmakers from eliminating criminal intent as a key element to prosecute people for other crimes.

"The element of intent is essential to our system of justice because of the array of abuses that result when the government can merely point the accusatory finger at a citizen, and a jury is then instructed by a judge to presume the citizen's guilt, instead of their innocence," she said.

In a blistering dissent, Justice James E.C. Perry shared similar concerns. In a section he titled "Slippery Slope," Justice Perry wondered what other crimes the legislature might decide to lift the burden from for the state to prove that a person knew he or she was committing a crime.

"Could the legislature amend its murder statute such that the state could meet its burden of proving murder by proving that a defendant touched another and the victim died as a result?" he asked, quoting from a federal judge who like several circuit judges in the state struck down the statute as unconstitutional. "Could the state prove felony theft by proving that a defendant was in possession of an item that belonged to another, leaving the defendant to prove he did not take it?"

Leaving no doubt where he stood, Perry wrote: "I cannot overstate my opposition to the majority's opinion. In my view, it shatters bedrock constitutional principles and builds on a foundation of flawed 'common sense.' " Justices Peggy Quince and Fred Lewis also dissented.

Justice Barbara Pariente joined Canady and Justices Jorge Labarga and Ricky Polston in upholding the law -- which four Palm Beach County Circuit Court judges had also previously ruled constitutional. But, noting that only Washington has a similar measures, she wrote a separate opinion voicing concern that the court may have given the Legislature too much power.

The majority said the law passed constitutional muster because it gives people the right to tell a jury that they didn't know the pills, powder or marijuana a friend put in their glove box, backpack or dresser drawer was illegal. The Legislature added that provision after the court in 2002 declared the law unconstitutional.

However, Perry said, it was a hollow victory. Innocent people still must go through the expense of a trial. Further, he said, they will be forced to prove they are innocent while the state can argue that mere possession proves they are guilty.

He offered several examples of innocent people who could be trapped. He offered, "a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection."

Antonacci said prosecutors aren't likely to waste time going after a letter carrier or a hapless mother. "We have enough to do," he said.

West Palm Beach defense attorney Kai Li Aloe Fouts isn't so certain. "You've got good cops and you've got bad cops. You've got good prosecutors. You've got bad prosecutors," she said. "We have cases every single day, where we're scratching our heads, wondering, "Why was this filed?' "

In light of the decision, King said she has new advice for parents of college-bound children: "Rent a single room, off-campus. You never know what the roommate might be bringing home."


Under Florida Statute 893.13, part of the Florida Comprehensive Drug Abuse Prevention and Control Act, it is unlawful to sell, manufacture, deliver or possess with intent to sell a controlled substance.

Depending on the drug involved, the amount and the circumstance, a person can be charged with a misdemeanor or a felony.

In some cases, sentences are mandatory. Depending on the situation, people can be sentenced to 15 or 30 years or even life in prison.

After the Florida Supreme Court in 2002 threw out the law because it didn't require prosecutors prove criminal intent, state lawmakers added this line: "The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter."


Florida and Washington are the only states in the nation that don't require the state to prove criminal intent to convict someone of drug charges.

(c)2012 The Palm Beach Post (West Palm Beach, Fla.)


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