by David M. Reutter

The Supreme Court of Florida held that for purposes of § 893.135(1), Florida Statutes, a completed drug trafficking by purchase “requires proof that the defendant both (1) gave consideration for and (2) obtained control of a trafficking quantity of illegal drugs.” The Court also instructed that the requisite control “consist[s] of the same range of conduct that qualifies as constructive possession under federal law, including control through an agent of the defendant.”

Before the Court was a certified question presented by the U.S. Court of Appeals for the Eleventh Circuit about the meaning of the word “purchase” in Florida’s drug trafficking law. Specifically, the Eleventh Circuit asked “whether a completed purchase of illegal drugs necessarily entails the defendant purchaser’s possession of those drugs, as federal law defines possession.

That question arose in an appeal by Michael Conage, who was convicted of a gun possession crime and then sentenced to a mandatory prison term under the Armed Career Criminal Act (“ACCA”). The federal district court that imposed the sentence concluded that Conage had three previous convictions for a “serious drug offense,” as defined by the ACCA. One of the three convictions was a 2006 conviction for trafficking in cocaine in violation of § 893.135(1)(b)1, Florida Statutes (2006). Conage appealed, arguing it was error to deem that conviction an ACCA predicate offense.

The ACCA defines a “serious drug offense” as one “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). Under the categorical approach, the factual details of the crime do not matter, only how § 893.135(1) defines the crime of drug trafficking is relevant. United States v. Conage, 976 F.3d 1244 (11th Cir. 2020).

The Florida Supreme Court noted that under § 893.135(1), a person commits drug trafficking when he knowingly (1) “sells,” (2) “purchases,” (3) “manufactures,” (4) “delivers,” (5) “brings into this state,” and (6) is “in actual or constructive possession of” a trafficking quantity of illegal drugs. Conage’s federal appeal focused on trafficking by purchase. In his appeal, Conage argued “that a purchase is complete upon payment by the defendant and that therefore a completed purchase does not require proof that the defendant possessed the purchased drugs.”

 The Eleventh Circuit determined it could not resolve the appeal without guidance about how Florida law defines a completed purchase in this context and that it needed to know “what the State must prove in order to convict a defendant of purchasing a trafficking quantity of” illegal drugs. The Eleventh Circuit stated that the answer to this question has “enormous” implications for federal law. It explained: If Conage’s argument on the meaning of “purchase” is correct, “then no Florida drug trafficking conviction under § 893.135(1) can ever qualify as an ACCA predicate offense….”

The Florida Supreme Court began its analysis by explaining possession as a matter of federal law. Possession entails both actual and constructive possession. Conage. The former occurs when a defendant has “direct physical control” over the item in question. By contrast, “Constructive possession exists when the defendant exercises ownership, dominion, or control over the item or has the power and intent to exercise dominion or control.” United States v. Beckles, 565 F.3d 832(11th Cir. 2009). For example, “a defendant has constructive possession of a substance if it is being held by an agent of the defendant.” United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999).

Turning to the definition of the word “purchase,” the Court turned to the dictionary because the term is not defined by the relevant statute. The Court found, as a matter of ordinary meaning, that “a purchase entails both giving consideration for and obtaining the good being purchased.”

“We do not think it would be reasonable to apply this definition so literally as to require proof that a defendant personally obtained actual, physical possession of the purchased item,” the Court instructed. “But we do think that a defendant cannot be said to have obtained an item until he has control over that item — in other words, until he has gained constructive possession as federal law understands that concept,” the Court explained.

The Court, therefore, concluded a purchase for purposes of § 893.135(1) requires proof that the defendant both (1) gave consideration for and (2) obtained control of a trafficking quantity of illegal drugs. It also concluded the requisite control to be the same range of conduct that constitutes constructive possession under federal law. See: Conage v. United States, 346 So.3d. 594 (Fla. 2022). 

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