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Florida Appellate Court rules that being in a room with others who are smoking marijuana and in which bags of marijuana were found, is not sufficient to establish that the defendant possessed marijuana.
Posted by: euser
May 27, 2010

The case of M.D. v. State, 35 Fla. L. Weekly D610 (Fla. 4th DCA March 17, 2010) involved an appeal of a minor from his adjudication of delinquency for possession of marijuana under 20 grams. The evidence at trial from the arresting officer was that upon arriving at a vacant residence, the officer observed that the door to a small utility room in the back of the residence was open. When the officer got within two or three feet of the door he smelled marijuana and then looked inside the utility room and found four individuals, including the minor, M.D. One of the individuals was smoking marijuana in the room and according to the officer, M.D. smelled like marijuana. Upon the police officer's approach, two individuals in the room dropped bags containing a leafy green substance which the officer suspected was marijuana. Additional bags of marijuana were recovered from the room and from one of the other individuals. No marijuana was found in M.D.'s actual possession nor was he seen dropping a bag containing marijuana. The officer also found loose tobacco in the corner of the utility room. The officer testified that he believed that the tobacco had been removed from a cigar so that the tobacco leaves could be used to wrap marijuana. His testimony was apparently offered without objection. The officer also testified there were no cigarettes or packages of loose tobacco found in the room.

The other item of significance was that M.D. after having been read his Miranda rights, told the officer that he was "there to smoke" and that "we just used the shed to smoke." The Defendant's position at trial was that the evidence which was entirely circumstantial did not rebut his theory of defense that he was smoking tobacco not marijuana.

The court reviewed the law in Florida. It noted that since M.D. was not in actual possession of the marijuana, the state had to prove that M.D. was in constructive possession of the drug. See J.G. v. State, 881 So. 2d 25, 26 (Fla. 4th DCA 2004).

The court went on to note what is required to prove constructive possession. The state must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the drug. Martoral v. State, 946 So. 2d 1240, 1242 (Fla. 4th DCA 2007). When drugs are found on the premises, not in the defendant's exclusive possession, the defendant's mere proximity to the drug is not enough to prove that he constructively possessed them. Earle v. State, 745 So. 2d 1087, 1089 (Fla. 4th DCA 1999). In such circumstances the state must present independent proof of the defendant's knowledge and ability to control the drug.

Describing what proof would meet this requirement, the court referred to the Earle case for the proposition that actual knowledge of the drug's presence, evidence of incriminating statements or actions or other circumstances from which a jury might lawfully infer that the defendant's actual knowledge of the presence of the drugs can be utilized. Earle at 1089.

The court went on to note however that no matter how strong the evidence may suggest guilt, a conviction cannot stand unless the evidence is inconsistent with every reasonable hypothesis of innocence when proof of guilt is circumstantial. State v. Law, 559 So. 2d 187, 188 (Fla. 1989).

The question in this case was whether M.D.'s statement in combination with the other evidence would conclusively refute the theory that he was smoking tobacco and not marijuana.

The court recognized that the state was relying upon M.D.'s statement that he was "there to smoke."

In analyzing this issue the court in M.D. v. State, discussed earlier decisions including J.S.M. v. State, 944 So. 2d 1143 (Fla. 2d DCA 2006) which held evidence insufficient when the defendant was found with three other people in a hotel room smelling of marijuana and in which three bags of marijuana were found in plain view.

The court also cited to J.M. v. State, 877 So. 2d 806 (Fla. 5th DCA 2004) where it was held that when an officer found a baggie of marijuana on the ground near the defendant's foot, such evidence was insufficient to prove possession. The Court also cited to J.A.C. v. State, 816 So. 2d 1228 (Fla. 5th DCA 2002) where the evidence was held insufficient when a defendant was a passenger in a car that smelled like marijuana and marijuana residue was found in the car and a small marijuana cigar was found in the ashtray on the passenger's door.

The court in M.D. reversed the adjudication of delinquency because the evidence was not inconsistent with reasonable hypothesis of innocence put forth by M.D. that he was smoking tobacco. The court noted that the smell of marijuana does not foreclose the possibility that M.D. was smoking tobacco while others were smoking marijuana. The state also failed to explain the tobacco found on the floor and exclude its presence in its argument. The court also noted that the tobacco cigarettes were not found does not carry much significance.

Charges against minors as well as adults for possession of marijuana are common. Often an individual may be standing in a room where others are possessing and smoking marijuana and yet not partake in such conduct. This case provides another example of where a vigorous defense can result in a successful conclusion to a charge of possession of marijuana.

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A Person Under Investigation For "Doctor Shopping" By State Authorities Has No Right To Privacy In Pharmacy Prescription Records
Posted by: euser
December 04, 2009

The case of State v. Carter, 34 Fla. L. Weekly D2466a (Fla.1st DCA November 30, 2009) involved a violation of Florida Statute § 893.13(7)(a)8. This statute makes it a third degree felony for any person obtain a controlled substance or prescription for a controlled substance without informing the doctor of the fact that the person had received a similar prescription or controlled substance from another doctor within the previous thirty days.

During the investigation the police went to the pharmacy that filled prescriptions for the defendant.

The defendant filed a motion to suppress the pharmacy records because the pharmacy had turned over records to law enforcement without a warrant and without giving any notice to the defendant.

The appellate court reversed the trial court's order suppressing the evidence based upon several legal issues.

First, Florida Statute § 893.07(4) requires pharmacies to maintain prescription records for two years "for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relatingto controlled substances." The court noted that the statute does not require a subpoena, warrant, or prior notice to the patient before law enforcement obtains the records.

The court next considered Florida Statute § 465.017(2)(a), which addresses the release of controlled substance records maintained by a pharmacy. It notes that section prohibits release of prescription records by the pharmacy to anyone other than the patient except as permitted under Florida Statutes chapter 893. It then noted that the records from the pharmacy were obtained pursuant to chapter 893.

The court also held that the Federal Health Insurance Portability and Accountability Act ("HIPAA") does not provide any legal basis for the suppression of the pharmacy records. The court noted that privacy issues addressed in "HIPAA" concern protecting health information in the possession of certain covered entities, such as health plans, health care clearinghouses and health care providers. It does not effect providing information to law enforcement officers or prosecutors.

The court also noted that "HIPAA" does not provide a remedy of suppression of records and therefore would not support the suppression of the prescription records from the pharmacy.

Finally the court considered the right to privacy found in Article I, Section 23 of the Florida Constitution. The court held that the constitutional right to privacy in medical records is not absolute and must yield to compelling government interests, which include controlling and prosecuting criminal activity. The court went on to cite Whalen v. Roe, 429 U.S. 589 (1977) in support of its contention that the regulation of the sale and distribution of dangerous drugs is a recognized vital interest of the state.

Also cited was Cushing v. Department of Proffesional Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982) which held that a surgeon had no reasonable expectation of privacy with respect to completed prescriptions in the possession of a pharmacy.

The court reversed the order suppressing the prescription records and remanded the case to the circuit court for further proceedings.

This case excludes several legal theories as a basis for suppressing the pharmacy records obtained by law enforcement authorities in a drug investigation. A valid defense to the charge of "doctor shopping" must therefore rest upon other factors.

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Court Reverses Conviction For Trafficking In Cocaine Because Multiple Searches Of Motel Room At 2:00 A.M. By Police Without A Warrant While Defendant's Wife Was Naked Under The Bed Sheets Was Intimidating And Coercive.
Posted by: euser
November 02, 2009

The case of Hardin v. State, 34 Fla. L. Weekly D2080 (Fla. 2d DCA October 9, 2009) involved a conviction for cocaine trafficking.

The conviction was reversed because of the failure of the trial court to suppress the cocaine that formed the basis of the conviction.

Late one night in Hillsborough County, deputy sheriffs were driving in the parking lot of a Motel 6. The deputies noticed a car bearing a license plate from Brownsville, Texas. The deputy sheriffs considered Brownsville a center of illegal drug activity and therefore, decided to investigate further. The deputies went to the motel clerk and developed information concerning the persons associated with the car.

The room was registered to Mr. Hardin but Hardin was not the registered owner of the automobile. At approximately 2:00 a.m. the deputies went to the hotel room and knocked on the door. Mr. Hardin came outside to speak with the deputies. Hardin told the deputies that the car belonged to his wife's sister. A female deputy asked if she could enter the room and talk with Hardin's wife. Hardin's wife was in bed naked under the sheets. The female deputy was given permission to enter the room while Mr. Hardin remained outside.

Mrs. Hardin could not speak English so arrangements were made for a translator to appear. Another deputy sheriff arrived who could speak Spanish. This deputy, a male, entered the room and Mrs. Hardin was advised that they knew that there were drugs in the room.

The car was searched without finding any drugs. The room was also searched. While the search was going on a third deputy, another male, entered the room. Even though the search revealed no drugs, the deputies kept telling Mrs. Hardin that they knew there were drugs in the room and promised that if she cooperated she would not be in trouble. Finally after approximately one hour and two searches that found no drugs, Mrs. Hardin surrendered her purse which contained cocaine. The purse had been under the sheets.

Mr. Hardin pled guilty to trafficking in cocaine reserving the right to appeal the dispositive order denying his motion to suppress.

The motion to suppress was based upon the fact that Hardin's wife did not voluntarily turn over the contraband.

The court noted that warrantless searches are per se unreasonable and violate the Fourth Amendment. Smith v. State, 753 So. 2d 713, 715 (Fla. 2d DCA 2000) and Coolidge v. New Hampshire, 403 US 443, 454-55 (1971). Overruled on other grounds. Recognized by O'Rourke v. Hayes, 378 F.3d 1201,1208 (11th Cir. 2004).

The court went on to note that while consent is an exception to this general rule, the state bears a heavy burden of showing that consent was given voluntarily and not mere acquiescence to police authority. In considering whether consent is voluntary, the court considers the totality of the circumstances. Kutzorik v. State, 891 So. 2d 645, 647 (Fla. 2d DCA 2005). Three factors form the basis for this analysis: (1) the time and place of the encounter; (2) the number of officers present; and, (3) the officer's words and actions. Miller v. State, 865 So. 2d 584, 587 (Fla. 5th DCA 2004).

The court noted that the initial contact by the deputy, known as a "knock and talk" in the early morning hours is appropriate. However, it is an intimidating circumstance. The number of deputies who entered the motel room suggested that Mrs. Hardin consented to law enforcement authority was less than voluntary. The court cited Royer v. State, 389 So. 2d 1007, 1018 (Fla. 3d DCA 1979) which held that being in a small enclosed area, confronted by two police officers presented an almost classic definition of imprisonment.

The court also noted that Mrs. Hardin was in a room with three deputies. Two of whom were men. The fact that she was naked under the sheets was more likely to cause intimidation by the show of the police authority.

The court also noted that both Hardin and his wife, from the outset were told that they were being investigated for illegal drugs.

The court noted that there were repeated requests that Mrs. Hardin surrender the drugs even though there had been searches of the room without finding any drugs. The court noted that repeated requests for consent may be significant in showing that the request was in reality, a demand and when an individual is informed of the suspicions of the police in a "hectoring manner" a specter of coercion may arise.

The court concluded that coercion rather than voluntary consent compelled Mrs. Hardin to turn over the contraband.

The court then discussed the profiling of anyone from Brownsville, Texas. It stated,

"[T] he deputies sprang into action on this supposition that anyone from Brownsville must be engaged in illegal activity." The court went on to comment, "[W]e cannotconclude that it is reasonable to suspect criminal behavior solely because of an individual's origin. See Royer, 389 So. 2d at 1016 'The fallacy of the undistributed middle directly applies: all narcotics carriers act like parts of the profile, but most people who act like parts of the profile are not narcotics carriers.'"

The court also went on to note that discrepancy between the names on the car and motel registrations was an unreasonable basis to believe that drug activity was afoot. The court wrote, "[O] ne's use in this manner of a name which is not his own, while perhaps suspicious, is not unlawful and certainly does not give rise to a reasonable belief that he is in the process of committing a felony."

The court finally commented, "The initial 'knock and talk' was lawful. But, continuing the encounter in the intimidating manner suggested by the record for at least an hour and after two fruitless searches exceeds the bounds of consent."

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A Conviction for Trafficking in Methamphetamine, Commonly Known as Meth Was Reversed Even Though a Large Quantity of Meth Was Found in the Defendant's Car.
Posted by: euser
August 25, 2009

A conviction for trafficking in methamphetamine, commonly known as meth was reversed even though a large quantity of meth was found in the defendant's car.

In the case of Byers v. State, 34 Fla. L. Weekly D1707c (Fla. 2d DCA August 21, 2009). The court of appeals reversed the conviction of the defendant for trafficking in meth.

The defendant was approached by police officers outside of a hotel room and arrested for carrying a concealed weapon. Inside the hotel room another person was observed smoking a bong and was also placed under arrest. The police then searched the hotel room and found a set of car keys on the dresser. The defendant admitted that the car keys belonged to him and consented to a search of the vehicle.

The defendant lied to the police officers by saying that the keys belonged to a white truck. The police soon learned that the keys belonged to a Chevy Malibu and searched the Malibu. The search yielded a black bag on the passenger side floorboard containing 52.7 grams of meth. This was enough to charge the defendant with trafficking in meth which carries a maximum punishment of 30 years with a 3 year minimum for possession of 10 grams or more but less than 200 grams, and a $50,000.00 fine.

When questioned by police Mr. Byers admitted that he knew that the large amount of meth was in the car but stated it belonged to the other individual and that other person intended to sell it. The defendant contended that all he did was bring that other person to the motel in exchange for a small amount of the drug.

Florida recognizes two types of possession that can lead to a conviction for possessing and/or trafficking in controlled substances such as meth.

The first is actual possession which is proved when the accused has knowing physical possession of a controlled substance.

The second type of possession is constructive possession and exists when the defendant knows of the presence of the contraband and has the ability to maintain control over it or reduce it to his possession even though he does not have it in his physical possession. See Gartrell v. State, 626 So. 2d 1364, 1366 (Fla. 1993) and State v. Snyder, 635 So. 2d 1057, 1058 (Fla. 2d DCA 1994).

The court in Byers noted that when the defendant has exclusive possession of the premises where the contraband is found, knowledge and control can be inferred.

When the premises is not in the exclusive possession of the defendant, knowledge and control cannot be inferred unless there is incriminating statements or other evidence that would support such an inference.

In Wagner v. State, 950 So. 2d 511, 513 (Fla. 2d DCA 2007) the court held that "When...contraband is found in a location that was accessible to more than one person, a defendant's knowledge of its presence and ability to exercise dominion and control will not be inferred; these elements must be established by independent proof."

In this case, the defendant admitted that he knew about the meth, thus meeting the first requirement set forth in Wagner. The question was whether Byers had dominion and control over the bag containing the meth.

The court noted that a judgment of acquittal is proper when the state does not produce evidence from which the dominion and control can be inferred. It also cited to the Florida Supreme Court case of State v. Law, 559 So. 2d 187, 188 (Fla. 1989) for the proposition that "[w]here the only proof of intent 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."

The court then reversed Byers' conviction for trafficking in meth because it held that even if the evidence permitted an inference that the defendant had control over the meth, it did not exclude Byers' reasonable hypothesis of innocence that the drugs in the backpack belonged exclusively to the other person.

Many drug cases involve finding illegal drugs in a house or car in which not only the defendant, but other individuals, are located. In these types of cases, the state must be able to prove something other than the mere existence of the drugs within a car or house or trailer, or even in an open area where other individuals are present with the defendant or had access to the area. The interesting point of this case is that even though the defendant admitted that he knew of the existence of the drugs in the bag, that did not meet the tests for possession because it did not meet the second part of the constructive possession requirement.

Many people find themselves arrested because they are in close proximity to a quantity of drugs. An arrest under those facts should not result in a conviction if there are other individuals in the area that also have the ability to possess and maintain control of the drug.

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