If a Defendant innocently comes into possession of contraband they should be given a opportunity to take reasonable steps to lawfully dispose of it.
EXAMPLE
If you mother left her prescription medication at your house, which you discovered at midnight and decide to bring her the prescription medication in morning are you guilty of possessing a controlled substance, and what is your duty with regards to her prescription medication. Consider the following examples:
Option One: You could dispose of her medication by flushing it down the drain. But this would deprive your mother of her medication, which might be very important.
Option Two: You could call the police and tell them to deliver her medication to her. The police would probably not want to act as a delivery service.
Option Three: You could immediately take your mother her medication. But she probably would not be very happy about waking her up at midnight to give her the medication.
Option Four: you could wait until the morning to give her the medication. This is probably the most reasonable option, and for most people the only option that makes sense.
FLORIDA CASE
Ramsubhag v. State, 937 So.2d 1192 (Fla. 4th DCA 2006) acknowledged “Florida has little jurisprudence on "passing control" or "momentary possession" as a defense,” but cites courts from other jurisdictions stating:
A synopsis of the law surrounding the doctrine of momentary possession is contained in Coleman v. State, 1997 WL 775567 (Alaska App. Dec.17, 1997), a case extrapolating the concept as applied in drug possession cases to firearm possession. The Alaska appeals court traced the jurisprudence back to United States v. Santore, 290 F.2d 51 (2d Cir.1960), and described the divergent bodies of law that had sprung forth in California and Alaska. One group of cases remained narrow, requiring two elements: (1) brief possession, and (2) its purpose to be innocent disposal. This group came out of a California case, People v. Mijares, 6 Cal.3d 415, 99 Cal. Rptr. 139, 491 P.2d 1115 (1971),
OTHER JURISDICTIONS AND THE MODEL PENAL CODE
In other jurisdictions it is almost universally agreed that when someone comes into possession of contraband they should be given a reasonable opportunity to lawfully dispose of the contraband. This would include being given a reasonable amount of time to dispose of it in a reasonable manner (i.e. giving it back to the owner instead of abandoning or destroying the contraband).
The Model Penal Code S. 2.01(4) states:
Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
Bieder v. United States, 707 A.2d 781 (D.C. Ct. App. 1998) the Court stated:
The record must reveal that (1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory-i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.
In State v. Miller, P.3d 92 (Utah 2013) the Court stated:
Where the trial failed to give a jury instruction on transitory possession the court reversed the conviction and remanded the case to the lower with the following instruction:
the defendant's possession of the controlled substances found in his pocket did not violate Utah Code subsection 58–37–8(2)(a)(i) if (1) the controlled substance was obtained innocently and held with no illicit or illegal purpose, and (2) the possession of the controlled substance was transitory; that is, the defendant took adequate measures to rid himself of possession of the controlled substance as promptly as reasonably possible.
