August 12, 2016

Constructive Possession of Drugs in Florida

Constructive Possession
Constructive Possession of Drugs in Florida

What is Actual Possession of Drugs in Florida?


One Florida court, Sasser v. State, 67 So. 3d 1150, 1152 (Fla. 2d DCA 2011) defined Actual Possession of Drugs in Florida as  "[A]ctual possession is shown when contraband is found in the defendant's hand, or his person, or within reach and under the defendant's control." (quoting Bennett v. State, 46 So. 3d 1181, 1183-84 (Fla. 2d DCA 2010)).  

What is Constructive Possession of Drugs in Florida?


To convict on a theory of constructive possession, the State is required to prove beyond a reasonable doubt (1) that the defendant had knowledge of the contraband and (2) that she had the ability to exercise dominion and control over the contraband.  See Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016); Santiago v. State, 991 So. 2d 439, 441 (Fla. 2d DCA 2008). 

What happens where drugs are found in a room with more than one occupant?



"Where contraband is found in a location jointly occupied with another person—in this case, a hotel room shared by Ms. Tucker and her husband—knowledge of and the ability to exercise dominion and control over that contraband may not be inferred from the defendant's proximity to it and must be shown by "independent proof."  Robinson v. State, 975 So. 2d 593, 595 (Fla. 2d DCA 2008) (quoting Mitchell v. State, 958 So. 2d 496, 500 (Fla. 4th DCA 2007)); Wagner v. State, 950 So. 2d 511, 513 (Fla. 2d DCA 2007).  Such proof may be offered through a defendant's own statements, witness testimony, scientific evidence, or incriminating circumstances other than mere 
at 513."

What happens where it looks like someone probably possessed drugs found elsewhere in the room?



"However, "[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence."  Green v. State, 667 So. 2d 208, 212 (Fla. 2d DCA 1995) (alteration in original) (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989)); see also Davis v. State, 761 So. 2d 1154, 1159 (Fla. 2d DCA 2000) ("Under the facts of this case, one could intuitively conclude that [the defendant] might be guilty.  However, 'guilt cannot rest on mere probabilities.' " (quoting Arant v. State, 256 So. 2d 515, 516 (Fla. 1st DCA 1972))). Although the circumstances were indeed suspicious, suspicion is not enough to support a conviction. The fact remains where the State can offer no evidence inconsistent with the Defendant's hypothesis of innocence,the trial court is required to grant judgment of acquittal on that charge.



Complete Text of a Florida Drug Court Decision on Constructive Possession



ANGELA MICHELLE TUCKER, Appellant, 
v. 
STATE OF FLORIDA, Appellee. 
Opinion filed August 12, 2016. 
IN THE DISTRICT COURT OF APPEAL
 OF FLORIDA 
SECOND DISTRICT 
) ) ) ) ) Case No. 2D14-5642 ) ) ) ) ) 


Angela Tucker appeals her convictions for possession of paraphernalia and possession of methamphetamine. She was found guilty of those offenses after a jury trial and received a one-year sentence on the paraphernalia count and a concurrent five-year sentence on the methamphetamine count.  We affirm the conviction on the paraphernalia count without comment.


Because the evidence was legally insufficient to establish that Ms. Tucker constructively possessed methamphetamine, however, we are required to reverse the conviction on that count and to direct that the corresponding five-year sentence be vacated and that Ms. Tucker be immediately released.

The State's evidence at trial was that two detectives went to a hotel room looking for Ms. Tucker's husband.  When they knocked on the door, they saw Ms. Tucker look out the window and then identified themselves.  Ms. Tucker did not open the door right away, so the detectives went around the back of the hotel to see if there was a rear exit.  As they did so, one detective thought he heard a toilet flushing. Ms. Tucker thereafter opened the door, and the detectives explained that they were looking for her husband.  When asked, Ms. Tucker stated that the room belonged to her and her husband. The detectives later confirmed that the room was registered to both of them. 

Ms. Tucker gave the detectives consent to search the hotel room. They observed both men's and women's clothing around the room and three garments hanging in the closet, including a large leather jacket that, according to the trial testimony, could have been a man's. There was no independent evidence that it belonged to Ms. Tucker.  The inside left pocket contained fresh syringes and a cigarette pouch containing used ones.  The right front pocket contained a metal cigarette holder that held a small baggie of methamphetamine inside. Ms. Tucker said nothing when the detective showed her the methamphetamine. The detectives later found two syringes in a nightstand drawer and saw blood spatter on the bed consistent with intravenous drug use. 

The detectives placed the syringes and methamphetamine on the bed,  and Ms. Tucker stated that the items belonged to her husband. The detectives asked her if her DNA would show up on any of the used syringes from the jacket, and she said that it would because she had used them to shoot Roxycontin. The syringes were never tested, and we therefore do not know whether they contained residue of methamphetamine, Roxycontin, or something else.  One detective described Ms. Tucker's demeanor as "antsy," said she did not appear surprised that he found the items, and testified that she never said "she didn't know those items were there." 

At the close of the State's case, Ms. Tucker moved for a judgment of acquittal on the ground, among others, that the State failed to present legally sufficient evidence showing that she possessed the methamphetamine found in the leather jacket.  The trial court denied the motion, and the defense rested without presenting witnesses.  After the jury returned guilty verdicts, Ms. Tucker made a renewed motion for judgment of acquittal and a motion for new trial, both of which were denied. 

On appeal, Ms. Tucker asserts that the trial court erred by not granting her motion for judgment of acquittal on the count for possession of methamphetamine. A motion for judgment of acquittal tests whether the evidence is legally sufficient to prove each element of the crime with which the defendant is charged.  Nicholas v. State, 47 So. 3d 297, 300 (Fla. 2d DCA 2010) (citing State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003)).  The question is whether, viewing the evidence in the light most favorable to the State, "a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt."  Westbrooks v. State, 145 So. 3d 874, 877 (Fla. 2d DCA 2014) (quoting Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)).  Reviewing the matter possessed the methamphetamine found in the cigarette holder in the right front pocket of the jacket was not legally sufficient to support a conviction for that alleged offense. 

Ms. Tucker was not found in actual possession of methamphetamine: the contraband was in the pocket of a jacket hanging in a closet and was neither in her hand nor within her reach.  See Sasser v. State, 67 So. 3d 1150, 1152 (Fla. 2d DCA 2011) ("[A]ctual possession is shown when contraband is found in the defendant's hand, or his person, or within reach and under the defendant's control." (quoting Bennett v. State, 46 So. 3d 1181, 1183-84 (Fla. 2d DCA 2010))).  The issue at trial, therefore, was whether Ms. Tucker constructively possessed the methamphetamine.  To convict Ms. Tucker on a theory of constructive possession, the State was required to prove beyond a reasonable doubt (1) that Ms. Tucker had knowledge of the contraband and (2) that she had the ability to exercise dominion and control over the contraband.  See Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016); Santiago v. State, 991 So. 2d 439, 441 (Fla. 2d DCA 2008). 

Where contraband is found in a location jointly occupied with another person—in this case, a hotel room shared by Ms. Tucker and her husband—knowledge of and the ability to exercise dominion and control over that contraband may not be inferred from the defendant's proximity to it and must be shown by "independent proof."  Robinson v. State, 975 So. 2d 593, 595 (Fla. 2d DCA 2008) (quoting Mitchell v. State, 958 So. 2d 496, 500 (Fla. 4th DCA 2007)); Wagner v. State, 950 So. 2d 511, 513 (Fla. 2d DCA 2007).  Such proof may be offered through a defendant's own statements, witness testimony, scientific evidence, or incriminating circumstances other than mere 
at 513.

Here, the State's proof of knowledge and the ability to exercise dominion and control rested entirely on circumstantial evidence.  To find that Ms. Tucker knew about or had the ability to exercise dominion and control over the methamphetamine in the right outside pocket of the jacket, the jury would have had to make that inference from one or more of the incriminating circumstances supported by the trial evidence— for instance, from the fact that Ms. Tucker admitted to using the syringes found in the left inside pocket of the jacket. See Singleton v. State, 105 So. 3d 542, 544 (Fla. 2d DCA 2012) ("Circumstantial evidence is evidence which involves an additional inference to prove the material fact; e.g., 'I saw A flee the scene' is circumstantial evidence of A's guilt and direct evidence of flight." (quoting Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 401.1 (2011 ed.)).  When the State's proof of a defendant's guilt is wholly circumstantial, it is not sufficient that the proof is consistent with guilt; it must also be "inconsistent with any reasonable hypothesis of innocence."  Jaramillo v. State, 417 So. 2d 257, 257 (Fla. 1982) (quoting McArthur v. State, 351 So. 2d 972, 976 n.12 (Fla. 1977)); see also Westbrooks, 145 So. 3d at 877.  Because Ms. Tucker's guilt of possessing methamphetamine depended entirely on the State's circumstantial evidence regarding whether she had knowledge of and the ability to exercise dominion or control over that contraband, this standard applies to the State's proof in this case. See Knight, 186 So. 3d at 1009-12 (discussing the applicability of the circumstantial evidence standard in a constructive possession case). 

her husband's.  This hypothesis was reasonable in that it was founded in the State's evidence at trial.  Cf. Huff v. State, 495 So. 2d 145, 150 (Fla. 1986) (concluding that the appellant's hypothesis of innocence was unreasonable because "[n]o evidence whatsoever was introduced to support appellant's story . . . [and] all of the evidence adduced at trial . . . pointed to his guilt").  The hotel room was jointly occupied by Ms. Tucker and her husband, the jacket in which the methamphetamine was found was consistent with its being a man's jacket, and Ms. Tucker's statements to police were that the contraband contained therein belonged to her husband but that she had used the syringes found in a different pocket to inject Roxycontin.  It would be reasonable to conclude from those facts that Ms. Tucker did not know about the methamphetamine and that she lacked the ability to exercise dominion or control over it. See, e.g., Wagner, 950 So. 2d at 513 (holding that the State failed to meet its burden in a constructive possession case based on circumstantial evidence where contraband was found in defendant's suits in a closet shared with his girlfriend and the girlfriend testified that the suits were a good hiding place); Winchell v. State, 362 So. 2d 992, 995 (Fla. 3d DCA 1978) (holding that evidence was insufficient to establish knowledge of contraband found on the rug and behind a radio in a jointly occupied motel room). 

The State's evidence was not inconsistent with Ms. Tucker's hypothesis. There was no evidence linking the methamphetamine to the syringes—for example, the results of a test showing that they had been used to inject that substance.  There was no evidence concerning how and when Ms. Tucker came into possession of the syringes or how or when, once used, they came to be in the left inside pocket of the  jacket.

We do not mean to imply that the State must offer these particular facts in a constructive possession case based on circumstantial evidence. Rather, we reason that under the facts of this case, the State's evidence proves at most that Ms. Tucker at some point in time and under circumstances not established by the evidence used syringes that were later found in the pocket of a leather jacket that could well have been her husband's and was hanging in the closet of a hotel room she occupied jointly with him. Absent some circumstance that connects Ms. Tucker's use of those syringes to the methamphetamine, the State's evidence, although consistent with Ms. Tucker's guilt, is not inconsistent with her reasonable hypothesis that the methamphetamine was her husband's and that she neither knew about nor had the ability to exercise dominion and control over it. See, e.g., Wagner, 950 So. 2d at 513; Cook v. State, 571 So. 2d 530, 531 (Fla. 1st DCA 1990) (holding that State's wholly circumstantial evidence of constructive possession of a crack pipe in defendant's purse was insufficient to rebut reasonable hypothesis of innocence where defendant left purse on a bar accessible to others while dancing).  

The State argues that Ms. Tucker's statements that her DNA would be on the used syringes found in the jacket and that the contraband was her husband's necessarily draw a connection between her and the methamphetamine sufficient to establish constructive possession.  We disagree. Because the syringes were located in a different jacket pocket from the pocket containing the cigarette case with methamphetamine, Ms. Tucker's admission to using those syringes to shoot Roxycontin does not necessarily link her to constructive possession of the methamphetamine. 

In actual or constructive possession of one item of contraband was legally insufficient to establish that defendant's knowledge of or dominion and control over another item of contraband in the same premises. See, e.g., Rangel v. State, 110 So. 3d 41, 46 (Fla. 2d DCA 2013) ("Mr. Rangel's actual possession of one type of narcotic does not permit the inference that he possessed a different type of narcotic concealed in a vehicle that he did not own."); Santiago, 991 So. 2d at 442 (holding that defendant's constructive possession of heroin found in plain view in a jointly occupied apartment was legally insufficient to establish constructive possession of drugs in various other places throughout apartment); Culver v. State, 990 So. 2d 1206, 1209-10 (Fla. 2d DCA 2008) (holding that the defendant's actual possession of cocaine was insufficient to prove constructive possession of other narcotics found in another area of her jointly occupied vehicle). Under the facts of this case, Ms. Tucker's admission to having possessed syringes found in one jacket pocket for purposes of injecting Roxycontin, without more, was not sufficient to rebut the reasonable hypothesis that the methamphetamine found in another pocket of the same jacket belonged to her husband and that she was unaware of and lacked the ability to exercise control over it. 

Likewise, on the face of it, Ms. Tucker's statement that the contraband items were her husband's is entirely consistent with a disavowal of knowledge of and dominion and control over the methamphetamine.  As such, the statement supports rather than contradicts her reasonable hypothesis of innocence. See Wagner, 950 So. 2d at 513 (holding that defendant's statement that officers "planted" drugs in his house was insufficient "to establish beyond a reasonable doubt his knowledge of the presence . . . 

State argues that Woods' statement '[t]hey planted it on me' would allow the trier of fact to infer knowledge of the cocaine's presence and is inconsistent with Woods' reasonable hypothesis of innocence.  The record, however, does not bear this out. . . . Woods' statement disclaims possession or ownership. . . . and [is] entirely consistent with Woods' reasonable hypothesis of innocence." (first alteration in original)). 

The State also maintains that the suspicious nature of the circumstances is sufficient to support the trial court's denial of Ms. Tucker's motion for judgment of acquittal.  However, "[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Green v. State, 667 So. 2d 208, 212 (Fla. 2d DCA 1995) (alteration in original) (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989)); see also Davis v. State, 761 So. 2d 1154, 1159 (Fla. 2d DCA 2000) ("Under the facts of this case, one could intuitively conclude that [the defendant] might be guilty.  However, 'guilt cannot rest on mere probabilities.' " (quoting Arant v. State, 256 So. 2d 515, 516 (Fla. 1st DCA 1972))). Although the circumstances were indeed suspicious, suspicion is not enough to support a conviction. The fact remains that the State offered no evidence inconsistent with Ms. Tucker's hypothesis of innocence, and that fact required the trial court to grant judgment of acquittal on that charge.

Accordingly, while we affirm Ms. Tucker's conviction for possession of paraphernalia, we must reverse her conviction and sentence for possession of methamphetamine. Because double jeopardy forecloses a retrial for that alleged offense and Ms. Tucker has already served her one-year sentence for possession of paraphernalia, we remand with instructions that the trial court vacate the judgment and sentence for that charge and order Ms. Tucker's immediate release. See Stenson v. State, 756 So. 2d 118, 120 (Fla. 3d DCA 2000); see also Webster v. State, 549 So. 2d 784 (Fla. 4th DCA 1989). 
Affirmed in part; reversed in part; remanded with instructions. 

LaROSE and SLEET, JJ., Concur. 

Appeal from the Circuit Court for Polk County; Roger A. Alcott, Judge. 

Amanda Peterson of Law Offices of Peterson, P.A., Mulberry, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Gillian N. Leytham,  Assistant Attorney General, Tampa, for Appellee. 


August 1, 2016

Which Judge will preside over my Tampa / Hillsborough County Drug Crimes Case?

Dick Greco, Eric R Myers, Judge Scott A Farr, Lawrence M Lefler, Margaret R Taylor, Richard A Weis, Paul T Jeske, John N Conrad, Art McNeil, Drug Crimes Hillsborough, Drug Crimes Tampa
How are Judges in new Drug Crimes cases are assigned in Hillsborough County and Tampa, Florida?


Felony and Misdemeanor drug charges are assigned to the various divisions of the court. According to Court rules Misdemeanor Drug Crimes and criminal traffic offenses in which the offense occurred are assigned to a county criminal drug divisions according to the first letter of the defendant's last name. Felony cases are randomly assigned to the circuit Judges.

The Drug Crimes rule also states, "When a  [Misdemeanor Drug Crimes] notice to appear, criminal report affidavit, or information is filed, the clerk will assign the case according to the following alphabetical distribution." This means that misdemeanor drug cases outside of the Plant City, Florida Division will be assigned according to these charts and pictures seen above and below. Felony cases are all randomly assigned to the Tampa Division. If a defendant is on Probation, the case will be assigned to the Judge that originally heard the case(s).

Which Judge will  preside over my Tampa / Hillsborough County Drug Crimes Case?




First Letter
Last Name
Division /
Judge
Floor Courtroom
G, 0, S, U    Division A — Greco   2nd   20  
B, F, P    Division B — Myers   1st Floor   12  
D, M, N, X, Y    Division C — Farr   2nd   24  
C, K, R    Division D — Lefler   2nd   23  
H, L, W    Division E — Taylor   2nd   22  




A, E, J, I, Q, T, V, Z    Division G — Jeske   2nd   21  
First Appearance    Division 0 — Conrad   1st   15
Plant City    Division P — McNeil   2nd   1



Who Are the Hillsborough County Drug Crimes Judges?


Tampa Drug Crimes Judge Dick A Greco
Judge Dick Greco, Jr.

Division A  2nd Floor Courtroom 20 Drug Crimes

http://www.fljud13.org/JudicialDirectory/DickGreco,Jr.aspx

Elected Chief Judge.





Hillborough Drug Crimes Judge Eric Myers
Judge Eric R Myers

Division B 1st Floor Courtroom 12  Drug Crimes

http://www.fljud13.org/JudicialDirectory/EricRMyers.aspx

Appointed to the bench by Jeb Bush in 2000.





Hillsborough Drug Crimes Judge Scott Farr
Judge Scott A Farr

Division C 2nd Floor Courtroom 24 Drug Crimes 

http://www.fljud13.org/JudicialDirectory/ScottAFarr.aspx

Appointed to the bench 2010.





Hillsborough County FL Drug Crimes Judge Lawrence Lefler
Judge Lawrence M Lefler

Division D 2nd Floor Courtroom 23   Drug Crimes

http://www.fljud13.org/JudicialDirectory/LawrenceMLefler.aspx

Veteran of Armed Services.





Hillsborough County Florida Drug Crimes Judge Margaret Taylor
Judge Margaret R Taylor

Division E 2nd Floor Courtroom 22  

http://www.fljud13.org/JudicialDirectory/MargaretRTaylor.aspx

Appointed by Governor Jeb Bush in 2005






Tampa Florida Drug Crimes Judge Richard Weis
Judge Richard A Weis

Domestic Violence Judge 

Division F 3rd Floor Courtroom 31  

http://www.fljud13.org/JudicialDirectory/RichardAWeis.aspx 





Tampa Florida Drug Crimes Judge Paul Jeske
Judge Paul T Jeske

Division G 2nd Floor Courtroom 21  

http://www.fljud13.org/JudicialDirectory/PaulTJeske.aspx







Tampa Florida Drug Crimes Judge John Conrad
Judge John N Conrad

Division 0 1st Floor Courtroom 15

http://www.fljud13.org/JudicialDirectory/JohnNConrad.aspx
First Appearance Judge





Plant City Tampa  Florida Drug Crimes Judge Art McNeil
Judge Art McNeil

Plant City   Division P — McNeil   2nd Floor   Courtroom 1

http://www.fljud13.org/JudicialDirectory/ArtMcNeil.aspx

Judge Art E. McNeil
301 N. Michigan Ave., Room 2006
Plant City, Florida 33563







Complete Directory of All Hillsborough County Drug Crimes Judges

http://www.fljud13.org/JudicialDirectory.aspx 

Complete Listing of Misdemeanor Drug Crimes Criminal Local Rules of Court





July 21, 2016

Marijuana Requires No Laboratory Report in Florida

What happens when Prosecutors use the testimony of a cop, with no testimony from a laboratory to identify the drug, Marijuana / Cannabis?


Florida Marijuana Laws, marijuana, cannabis, #cannabiscommunity, #cannabislaws, #marijuana, #norml
No Lab Report Needed
for Weed in Florida
The following sections are excerpts from the court's marijuana opinion testimony decision that can be found in its entirety here. "The issue before us is whether a police officer’s identification of marijuana, arrived at by sight and smell alone, is admissible experience-based opinion testimony. Because the officer’s opinion was based on his personal knowledge and perception and resulted from a process of everyday reasoning, we hold that the officer’s opinion was admissible as lay opinion testimony under Section 90.701, Florida Statutes."

"We find the officers’ testimony within the 
permissible range of lay
observation and ordinary police experience.”

Florida Law Weekly says, "Trial court did not abuse discretion by admitting police officer's testimony identifying substance as marijuana based on sight and smell alone -- Officer's testimony was admissible as lay opinion testimony because it was based on sufficient personal knowledge and senses of sight and smell, and it was arrived at through a process of everyday reasoning . . . ."

Another Florida Court Does Not Require and Expert or a Lab Test to Prove Possession Charges in Tampa UPDATED July 21 


"Florida's adoption of the Daubert standard has not changed the long established rule that lay persons can identify marijuana—and some other illicit  substances as well, e.g., cocaine and methamphetamine—based on their personal experience and knowledge. Such testimony is not admitted based on scientific expertise but instead based on the layman's training and experience, for which a predicate establishing a sufficient degree of familiarity is sufficient. See United States v. Walters, 904 F.2d 765, 770 (1st Cir. 1990) (holding that scientific analysis or expert testimony is not required to prove the illicit nature of a substance and proof identifying the substance may be based on the opinion of a knowledgeable lay person); United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989) ("Although a drug user may not qualify as an expert, he or she may still be competent, based on past experience and personal knowledge and observation, to express an opinion as a lay witness that a particular substance perceived was cocaine or some other drug."); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) ("[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction."). 

"evidence may be sufficient, without the introduction of an 
expert chemical analysis, to establish the identity of the 
substance involved in an alleged narcotics transaction"

If it were otherwise, there would be a substantial amount of litigation on this subject in the federal courts and other jurisdictions that adopted Daubert years ago. Tellingly, the contrary is true. The federal courts—which have followed Daubert since 1993—have long allowed lay testimony to identify illicit substances much as the deputy did in this case. See, e.g., United States v. Robinson, 144 F.3d 104, 108 (1st Cir. 1998) ("[P]roof based upon scientific analysis or expert testimony is not required to prove the illicit nature of a substance." (quoting United States v. Valencia-Lucena, 925 F.2d 506, 512 (1st Cir. 1991))); Robinson v. State, 702 A.2d 741, 745 (Md. 1997) (collecting both federal and state cases supporting the proposition that proof of the chemical composition of an alleged controlled substance need not be established only by chemical analysis but instead may be proved by circumstantial or indirect evidence)." 

Florida Law Weekly Case Summary: "Because the Daubert standard regarding the admissibility of expert testimony does not change the long-established rule that lay persons can identify marijuana based on their personal experience and knowledge, the court affirmed. The state laid a sufficient foundation for the deputy's identification of the substance found in his book bag as marijuana based on the deputy's experience and training."

Source: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/May/May%2025,%202016/2D15-1738rh.pdf


What is a Typical Marijuana Possession Case in Florida?



This case is a typical marijuana possession case. L.L., a juvenile, was charged with one count of simple possession of cannabis under Section 893.13(6)(b), Florida Statutes. At the adjudicatory hearing below, the State relied, in part, on the testimony of Officer Joseph Munecas, who offered his opinion that the substance in question was marijuana. Prior to trial, L.L. requested a Daubert hearing to challenge the admissibility of Officer Munecas’s opinion testimony. The judge declined to hold a pre-trial hearing, but agreed to conduct the hearing during the course of the trial. The prosecutor began by laying the foundation for Officer Munecas’s opinion testimony, asking the officer about his field experience and training.



"Officer Munecas also searched L.L.’s vehicle and found a 
rolled cigarette under the front passenger seat. 
At trial, and again over L.L.’s objection,
 the officer identified the item as a marijuana cigarette . . . . ."


The Court noted:

"During cross-examination, counsel for L.L. repeatedly asked Officer Munecas how he was able to identify the substance as marijuana. The officer maintained that his opinion was “just based on my experience and based on my senses.” Counsel pressed the officer further, asking whether his experience-based methodology satisfied any of the traditional Daubert factors. For instance, counsel asked whether Officer Munecas used the scientific method, whether he collected any data to formulate his opinion, whether there were any peer reviewed articles determining the reliability of identifying cannabis by sight and smell, or whether he was aware of the false positive rate regarding his method of identifying the substance. Officer Munecas was unable to answer counsel’s pointed questions beyond asserting that he had seen and smelled marijuana on numerous occasions in the past and therefore was able to identify it when he saw and smelled it on this occasion. The officer finally conceded: “Sir, I am a police officer, I’m not a scientist.”

"Although the trial judge expressed doubts as to whether Officer Munecas’s “testimony is based upon sufficient facts or data[,] is the product of reliable principles and methods, and whether he has applied the reliable principles and methods in this case[,]” the judge ruled that the testimony was admissible . . . . "

How did the Florida Marijuana Appeal  court Rule?


"Officer Munecas had sufficient personal knowledge to support his opinion 
that the substance was marijuana. He testified that he had years of experience identifying marijuana by sight and smell, 
even going so far as to claim marijuana is so predominant 
in the community that he sees it “practically every day.”


Florida Statutes, reads as follows:

90.702 Testimony by experts 

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion
or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

One of the Legislature’s stated purposes in amending Section 90.702 was “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and to no longer apply the standard in Frye v. United States, 293 F.2d 1013 (D.C. Cir 1923) in the courts of this state.” Ch. 2013-107, Laws of Fla. (Preamble to § 90.702). The Legislature also intended to prohibit the much criticized pure opinion exception to the Frye admissibility standard as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007). Id.


Five Factors of the Daubert Test of Admissibility in Florida



In Daubert, the Court referenced five factors courts could use to determine the reliability of expert scientific testimony: 

(1) whether the expert’s theory or technique can be (and has been) tested; 
(2) whether the theory or technique has been subjected to peer review and publication; 
(3) the known or potential rate of error; 
(4) the existence and maintenance of standards controlling the technique’s operation; and 
(5) whether the technique has been generally accepted in the relevant scientific community. 

509 U.S. at 593-94. 

The Defense claimed that Officer Munecas’s opinion testimony did not satisfy Daubert’s reliability standard. The State counters by arguing the Daubert factors are “flexible and nonexhaustive.” However, we do not decide this case under Daubert’s expert opinion testimony framework because the admissibility of Officer Munecas’s experience-based testimony is more appropriately analyzed under Section 90.701.


Section 90.701: Lay Opinion Testimony 




We begin with the text of Section 90.701, Florida Statutes:

90.701. Opinion testimony of lay witnesses

If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

However the Florida court ruled in this case “[a]ll lay witnesses have some specialized knowledge—knowledge relevant to the case that is not common to everyone . . . . Indeed, that is why all witnesses—lay or expert—are called: to get what they know about the case that other people do not.” Paul F. Rothstein, Fed. Rules of Evidence Rule 701 (3d ed.). The text of the Federal Rules offers more guidance than does Section 90.701 because it specifies that lay opinion testimony is not based on “specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701 (emphasis added). With this in mind, the question is not whether the opinion requires specialized knowledge, as all opinion testimony does, but whether the specialized knowledge is sufficiently specialized to fall within the scope of Section 90.702. See Rothstein, supra, Rule 701.

The Advisory Committee Notes to Rule 701 prove instructive on this point, distinguishing between specialized knowledge within the scope of Rule 702 and personal knowledge: “courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established.” Fed. R. Evid. 701 advisory committee’s note to 2000 amendment. This is because “[s]uch testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson’s personal knowledge.” Id.; see also § 90.604, Fla. Stat. (“Except as evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.”)

The lay witness may not rely on hearsay in forming an opinion, but the witness may base the opinion on what the witness has perceived.” (citing Somerville v. State, 626 So. 2d 1070 (Fla. 1st DCA 1993))); Barnes v. State, 415 So. 2d 1280, 1283 (Fla. 2d DCA 1982) (“Section 90.701, Florida Statutes (1979), allows opinions of lay witnesses only when based upon what the witness has ‘perceived.’”).

Here, Officer Munecas’s opinion is based solely on his personal, firsthand knowledge and what he perceived. Cf. Daubert, 509 U.S. at 592 (“Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”). For instance, when asked how he was able to identify the “strong smell of marijuana” coming from L.L.’s rolled-down window,

Finally, we hasten to add that although the more demanding Daubert admissibility standard does not apply to lay opinion testimony, there is nevertheless a reliability inquiry. Not only must lay opinion testimony be based on the witness’s personal knowledge, section 90.604, Florida Statutes, and perceptions, section 90.701, Florida Statutes, but the witness must have sufficient personal knowledge to support the opinion. See Imwinkelried, Distinguishing, supra, at 94 (“[T]he judge must determine whether the extent of the witness’s familiarity is ‘sufficient.’”) (quoting Fed. R. Evid. 901(b)(2) (advisory committee’s note)).7 Here, we have no difficulty concluding that Officer Munecas had sufficient personal knowledge to support his opinion that the substance was marijuana. He testified that he had years of experience identifying marijuana by sight and smell, even going so far as to claim marijuana is so predominant in the community that he sees it “practically every day.”

For the reasons outlined above, we conclude the trial court did not abuse its discretion in admitting Officer Munecas’s marijuana identification testimony in this case. Officer Munecas’s testimony was admissible lay opinion testimony under Section 90.701 because it was based on sufficient personal knowledge and his senses of sight and smell, and it was arrived at through a process of everyday reasoning. We therefore affirm the decision of the trial court.

Affirmed.

Third District Court of Appeal State of Florida

Opinion filed April 6, 2016. Not final until disposition of timely filed motion for rehearing.

No. 3D14-2410 Lower Tribunal No. 14-2034

L.L., a juvenile,  Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Richard Hersch, Judge.


July 14, 2016

Another Florida Drug Dog Sniff Case Overturned

drug sniff, drug sniffing dog, methamphetamine, Drug Crimes,
Drug Conviction Thrown Out - Bad Dog

Here are the facts of the most recent dog sniff case we have seen in Florida.


Officer patrolling with his drug detection dog when driver spotted in a truck with no seatbelt. Driver stopped for seatbelt violation. Cop asked driver to step out of the vehicle. Cops asked for consent to search the truck - denied. The officers then decided to conduct a “free sniff” with the dog. By that time, the information had come back from dispatch on the license and registration. Rather than write the ticket for the seatbelt offense, the officer went back to his car, retrieved the dog and commenced the sniff on the outside of the vehicle. Not surprisingly, dog alerts and meth found.

Why did a Florida Drug Crime Court find a Drug Dog Sniff was Unreasonable?


"the officer had obtained all the necessary information from dispatch and could have started to write the ticket immediately. Instead, he decided to interrupt the traffic stop for the dog sniff."


TEXT OF DRUG DOG SNIFF OPINION


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LEE JASON UNDERHILL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-1778
[July 13, 2016]


Appellant Lee Underhill appeals his convictions for possession of methamphetamine and use or possession of drug paraphernalia. He contends that the trial court erred in denying his motion to suppress evidence recovered during a traffic stop, because the officer unconstitutionally prolonged the stop by interrupting it to use a drug sniffing dog. Based upon Rodriguez v. United States, 135 S. Ct. 1609 (2015), and Jones v. State, 187 So. 3d 346 (Fla. 4th DCA 2016), we agree that the traffic stop was prolonged and the evidence discovered during the prolonged stop must be suppressed. We reverse the conviction and sentence.

An officer with the Okeechobee Narcotics Task Force was patrolling with his drug detection dog when another team member radioed that appellant had been spotted in a truck and was not wearing his seatbelt. The officer, along with at least one other officer in a separate vehicle, stopped appellant. The officer asked for appellant’s driver’s license and registration, informing appellant that he was being stopped for the seatbelt

2
violation. Appellant seemed nervous and the officer asked appellant to step out of the vehicle. At the same time and while standing beside the truck, the officer called in the license and registration information to dispatch.

While waiting for the information to come back on the license and registration, the officers questioned appellant. They asked for consent to search the truck, which appellant refused. The officers then decided to conduct a “free sniff” with the dog. By that time, the information had come back from dispatch on the license and registration. Rather than write the ticket for the seatbelt offense, the officer went back to his car, retrieved the dog and commenced the sniff on the outside of the vehicle. Within a couple of minutes, the dog alerted on the vehicle. The deputy advised the driver that the dog had alerted, and they were going to search the vehicle. Inside, the dog alerted to a black bag located on the driver’s side floorboard near the transmission hump. The bag contained drug paraphernalia, and appellant was arrested. Later that day, the officers also wrote a traffic citation to appellant for the failure to wear a seatbelt.

The State charged appellant with possession of methamphetamine, and use of, or possession with intent to use, drug paraphernalia. Appellant moved to suppress the evidence, contending that the search of his vehicle was unconstitutional under Rodriguez, 135 S. Ct. at 1612, which was published just prior to the trial of the action. After hearing the testimony of the detectives, the trial court denied the motion, concluding that the use of the dog did not prolong the traffic stop more than the reasonable time it would otherwise take to complete the stop and write the traffic citation. The jury convicted appellant of both charges. The court sentenced appellant, and this appeal follows.

Appellate courts review de novo suppression issues that turn on an issue of law and defer to the trial court on findings of fact which are supported by competent substantial evidence. Connor v. State, 803 So. 2d 598, 605 (Fla. 2001). In this case, the trial court’s analysis was based upon a mistake of law.
We recently decided a case nearly factually identical to this case. In Jones v. State, 187 So. 3d 346, 346 (Fla. 4th DCA 2016), an officer stopped the defendant for failure to wear a seatbelt. He obtained the defendant’s driver’s license and car registration but did not do anything with them. Id. at 347. Instead, he asked for permission to search the vehicle, and when the defendant refused, the officer retrieved his drug dog from his vehicle to perform a dog sniff of the defendant’s vehicle. Id. The dog alerted, and

3

the officer discovered oxycodone pills. Id. Only about three minutes passed from the beginning of the traffic stop until the dog alerted. Id.

In analyzing the effect of Rodriguez on this area of law, our Court explained that:

Prior Supreme Court cases have held that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket, Caballes, 543 U.S. at 407, 125 S.Ct. 834, and that a seizure is lawful only “so long as [unrelated] inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Rodriguez, however, eliminates any ambiguity about the reasonableness of the time required for the officer to complete a traffic stop. As the Court made clear, “[i]f an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’” Rodriguez, 135 S.Ct. at 1616 (second alteration in original) (quoting Caballes, 543 U.S. at 407, 125 S.Ct. 834). “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’ ” IdJones, 187 So. 3d at 347-48. 

In other words, the issue is not, as the trial court thought, what is an objectively reasonable time in which to complete the traffic stop, but whether the dog sniff in this particular stop “adds time to” the stop. Rodriguez, 135 S.Ct. at 1616. In Jones, our Court concluded that the officer had abandoned the purpose of the stop by deciding not to write a ticket but to start the dog sniff. Jones, 187 So. 3d at 348. Therefore, the stop was prolonged beyond what was necessary to accomplish the mission. Id. Likewise, in this case, the officer had obtained all the necessary information from dispatch and could have started to write the ticket immediately. Instead, he decided to interrupt the traffic stop for the dog sniff. Although it was only a short period of time until the dog alerted, under Rodriguez, the sniff unconstitutionally prolonged the completion of the mission of the traffic stop.

Courts across the country have uniformly interpreted Rodriguez as requiring a particularized review of the individual stop to determine, sometimes on a minute-by-minute basis, whether time has been added to the stop through a dog sniff. See, e.g., U.S. v. Evans, 786 F.3d 779 (9th Cir. 2015) (holding officer prolonged traffic stop beyond the time required

4

to complete traffic “mission” but remanding for determination of whether independent reasonable suspicion of criminal activity existed); U.S. v. Williams-Davis, No. 2:14-cr-04072-SRB-1, 2015 WL 6942499 (W.D. Mo. Nov. 10, 2015) (denying motion to suppress where officer had not completed checking identification information at the time the dog alerted to drugs); U.S. v. Kendrick, No. 10–CR–6096–FPG, 2015 WL 2356890 (W.D.N.Y. May 15, 2015) (denying a motion to suppress citing Rodriguez and determining in a minute-to-minute analysis that the stop had not been improperly extended); State v. Warren, 775 S.E. 2d 362 (N.C. Ct. App. 2015) (affirming denial of motion to suppress where dog sniff was performed while a backup officer completed writing out traffic citation). Our conclusion in this case and in Jones is in accord with these cases.

For the foregoing reasons, we reverse the conviction and sentence and remand for further proceedings.
CIKLIN, C.J., and GERBER, J., concur.
* * *

Not final until disposition of timely filed motion for rehearing.

Source: http://www.4dca.org/opinions/July%202016/07-13-16/4D15-1778.op.pdf

July 1, 2016

St Pete Still #Warped Cannabis Arrests at Van's Warped Tour St Petersburg, Florida

#Warped St. Petersburg PD will arrest and send to Pinellas County Jail they are still serious about possession
Warped Tour St Petersburg
Cannabis Arrest
St. Petersburg officials  have toyed with the idea of decriminalization of cannabis. However, we just received notice of at least one arrest and St. Petersburg Police Department officers are taking a hard line on possession of weed at the Van's Warped Tour. 

#Warped St. Petersburg PD will arrest and send to Pinellas County Jail they are still serious about possession  #Cannabis #weed @VansWarpedTour #Norml #CannabisCommunity

I had hoped my years of defending Possession of Marijuana cases in Florida were over - apparently they are not.


June 23, 2016

Growhouse Busted in Winter Haven, Florida - Video From the Inside




Polk County, Florida has one less growhouse after today's bust in Winter Haven, Florida. Forfeiture of the residence is possible.

#cannabiscommunity, #cannabislaws, #marijuana, #norml, Cultivation of Marijuana, Grady Judd, Manufacture of Cannabis, Marijuana Trafficking, trafficking in cannabis,
Polk County, Florida Growhouse 
Here is some video from inside the otherwise unremarkable suburban home, a map of 124 Elliott Ln, Winter Haven, FL 33884 and here is the haul according to the media darling, Grady Judd:



  • 33 pounds of processed marijuana 
  • 300 marijuana plants 
  • 100 bags of cannabis 
  • 2 freezers 
  • $4,600 in purloined electricity over 90 days 
  • $151,000 Bond 

Growhouse Criminal Charges include:


  • Grand theft of a utility 
  • Trafficking and cultivation of cannabis.

Video Inside the Polk County, Florida Growhouse





Here is a Map of the Alleged Polk County Growhouse at 124 Elliott Ln, Winter Haven, FL 33884


 


Sources:

http://www.fox13news.com/news/local-news/164817547-story
http://www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2016/6/23/auburndale_youth_soc.html

May 20, 2016

Is there a marijuana grow house in your neighborhood?

Marijuana Trafficking, Manufacture of Cannabis,  #cannabiscommunity, #cannabislaws, #marijuana, #norml
Hillsborough County, Florida
Another Weed Growing Operation Raided

There Probably IS a marijuana grow house in your neighborhood


Yet another growhouse has been raided in Hillsborough County Florida, This time in Brandon. See the map below for the location. The haul was 350 pounds. Here is a list of charges according to local news and the Hillsborough County Sheriff's Office reports: Trafficking in marijuana, Cultivation of marijuana,Grand theft-electricity, Own/lease/rent for purposes of trafficking,  Possession of drug paraphernalia. According to one source, "So far in 2016, Hillsborough County Sheriff's deputies have shut down 20 marijuana grow operations in the county."

"You can take a look at a few 
other growhouse locations here."

Florida marijuana laws remain tough as noted in a previous marijuana trafficking article we published in January. The drug statute establishes the penalties as first degree felonies when the case involves "in excess of 25 pounds of cannabis, or 300 or more cannabis plants, commits a felony of the first degree, which felony shall be known as “trafficking in cannabis . . . .”

Minimum Mandatory Sentence for Cannabis


Under Florida's tough trafficking law Florida Statute 893.135, Trafficking offenses have mandatory sentences. in this case the grower faces "a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $25,000."


Map of Latest Alleged Marijuana Growhouse


Below is a map of the calm peaceful location for the latest alleged grow operation. You can take a look at a few other growhouse locations here.





Previously we have discussed some of these Marijuana charges:


DRUG2905 Trafficking in Cannabis 25 to 2,000 Pounds | First Degree Felony ...
www.drug2go.com/2010/09/trafficking-in-cannabis-25-to-2000.html



 Rating: 5 - ‎Review by Google+ User
Jan 15, 2016 - Charge Code DRUG2905 is used by the court system when cases involve Trafficking in Cannabis 25 to 2,000 pounds. The charge is a First ...

DRUG8100 Possession of Drug Paraphernalia

www.drug2go.com/2010/09/drug8100-possession-of-drug.html


 Rating: 5 - ‎Review by Google+ User
Sep 2, 2010 - 893.147 Use, possession, manufacture, delivery, transportation, or advertisement of drug paraphernalia. (1)USE OR POSSESSION OF DRUG ...

Sources:

http://www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2016/5/19/deputies_approximate.html

http://www.hcso.tampa.fl.us/