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IANAL but I have read a ton of case law on similar subjects involving possession. In the case of Rettenmaier, the possession laws work almost identical to drug

IANAL but I have read a ton of case law on similar subjects involving possession. In the case of Rettenmaier, the possession laws work almost identical to drug possession laws. When the contraband is not in actual possession(physically on the persons body, in pocket, etc...) then they must use the rules of constructive possession. (At least in FL, and many other states are similar) For constructive possession, they must prove: 1. The person had knowledge of the presence of the contraband 2. The person had the ability to exercise dominion and control over the contraband. There used to be a 3rd rule "Knowledge of the illicit/illegal nature of the contraband" -- but IIRC that one got thrown out a few years ago making most possession crimes strict-liability. For files in unallocated space, without any other evidence, neither of the rules could be satisfied and a good lawyer would get it dismissed before it ever went to trial. Now, if in an interview, the subject 'confesses,' then they may have 'evidence' of either rule, and the case can go to a jury for the facts to be decided. There was a case in FL(a quick search didn't find it again) of a person driving a box truck full of marijuana that had a padlock on the doors to the cargo compartment. They were pulled over and the officers could smell the marijuana from outside the truck. They were convicted but the case was overturned on appeal because there was no evidence that the driver knew what marijuana smelled like (no knowledge of its presence) and no evidence that the driver had a key to the locked cargo compartment (no ability to exercise dominion or control) https://www.law.cornell.edu/wex/constructive_possession https://www.law.cornell.edu/wex/constructive_possession http://www.justiceflorida.com/when-is-someone-in-constructive-possession-of-drugs/ http://www.justiceflorida.com/when-is-someone-in-constructiv...

jacobevelyn 9y ago
Thanks for all the info! The case you described also sounded familiar to me so I set out trying to find it. No luck though; the closest I could come was California v. Acevedo[^1] and its related cases like United States v. Chadwick. [1]: https://en.wikipedia.org/wiki/California_v._Acevedo https://en.wikipedia.org/wiki/California_v._Acevedo
- joering2 9y ago
  Amazing case. I dont think however it will stand the test of time today. A driver that supposedly doesnt know how marihuana smells (how do you prove he does or does not) drives across the state moving tons of contraband so long as he does not posses a key to the truck's locker.
  - TheSpiceIsLife 9y ago
    I guess in court you ‘prove’ that a person has no knowledge of the smell of marijuana by all of: a) they make a statement under oath to the effect that they have no knowledge b) they and their immediate family / propuesta they live with have no relevant convictions or charges that would contradict the above, and no known links to anyone who clearly does (no electronic communications collect as evidence) c) they are otherwise a just, upright, and moral citizen
    - sathackr 9y ago
      The burden of proof is on the prosecution. The defendant has a right to remain silent(5th amendment) and that silence cannot be used against him/her. If there is no evidence* that the person knows what marijuana smells like, then their knowledge of what it smells like cannot be proved, so there is no issue of fact for a jury to consider, and the case should be dismissed. * - 'evidence' is a very low bar to meet. It can be something as benign as a conversation about herbal remedies. Once there is some sort of 'evidence' -- it can go to trial and is up to the jury (the trier of fact) to determine if indeed that conversation about herbal remedies proves the defendant knows what marijuana smells like. One thing I found interesting is that nearly every type of charge has a set of jury instructions that tell the jury exactly what they must decide. They are quite enlightening. FL Jury instructions for most drug offenses: http://www.floridasupremecourt.org/jury_instructions/instructions-ch25.shtml http://www.floridasupremecourt.org/jury_instructions/instruc... Specifically possession(RTF) http://www.floridasupremecourt.org/jury_instructions/chapters/chapter25/p2c25s25.7.rtf http://www.floridasupremecourt.org/jury_instructions/chapter...
- sathackr 9y ago
lacklery 9y ago
it could be used for further inquiry or investigation. in the case of the computer the owner would not even know.

jacobevelyn 9y ago

Thanks for all the info! The case you described also sounded familiar to me so I set out trying to find it. No luck though; the closest I could come was California v. Acevedo[^1] and its related cases like United States v. Chadwick. [1]: https://en.wikipedia.org/wiki/California_v._Acevedo https://en.wikipedia.org/wiki/California_v._Acevedo

joering2 9y ago
Amazing case. I dont think however it will stand the test of time today. A driver that supposedly doesnt know how marihuana smells (how do you prove he does or does not) drives across the state moving tons of contraband so long as he does not posses a key to the truck's locker.
- TheSpiceIsLife 9y ago
  I guess in court you ‘prove’ that a person has no knowledge of the smell of marijuana by all of: a) they make a statement under oath to the effect that they have no knowledge b) they and their immediate family / propuesta they live with have no relevant convictions or charges that would contradict the above, and no known links to anyone who clearly does (no electronic communications collect as evidence) c) they are otherwise a just, upright, and moral citizen
  - sathackr 9y ago
    The burden of proof is on the prosecution. The defendant has a right to remain silent(5th amendment) and that silence cannot be used against him/her. If there is no evidence* that the person knows what marijuana smells like, then their knowledge of what it smells like cannot be proved, so there is no issue of fact for a jury to consider, and the case should be dismissed. * - 'evidence' is a very low bar to meet. It can be something as benign as a conversation about herbal remedies. Once there is some sort of 'evidence' -- it can go to trial and is up to the jury (the trier of fact) to determine if indeed that conversation about herbal remedies proves the defendant knows what marijuana smells like. One thing I found interesting is that nearly every type of charge has a set of jury instructions that tell the jury exactly what they must decide. They are quite enlightening. FL Jury instructions for most drug offenses: http://www.floridasupremecourt.org/jury_instructions/instructions-ch25.shtml http://www.floridasupremecourt.org/jury_instructions/instruc... Specifically possession(RTF) http://www.floridasupremecourt.org/jury_instructions/chapters/chapter25/p2c25s25.7.rtf http://www.floridasupremecourt.org/jury_instructions/chapter...
sathackr 9y ago

lacklery 9y ago

it could be used for further inquiry or investigation. in the case of the computer the owner would not even know.