GEORGE GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Green was convicted of cocaine possession based on his presence in a room where cocaine was visible during a drug transaction. The court reversed, holding that the State failed to prove the essential element of dominion and control over the contraband, as mere proximity to drugs without more is insufficient for constructive possession.
The conviction is reversed because the State failed to prove the first element of constructive possession—dominion and control over the contraband. While the State proved Green's knowledge of the cocaine's presence and its illicit nature, proximity to contraband without more is legally insufficient to establish possession, particularly where the defendant is a mere visitor with no connection to the premises.
[1] To establish constructive possession of contraband, the State must prove the accused had dominion and control over the contraband, knowledge that the contraband was withi…
[2] Mere proximity to contraband, without more, is legally insufficient to prove possession.
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Join FLexlaw to unlock all legal intelligence“three elements must be proved to establish constructive possession: "(1) The accused must have dominion and control over the contraband; (2) The accused must have knowledge that the contraband is within his presence, and; (3) The accused must have knowledge of the illicit nature of the contraband."”
Establishes the three-part test for constructive possession that the State must satisfy
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Join FLexlaw to unlock all legal intelligenceA police officer and confidential informant negotiated a cocaine purchase with several individuals in an apartment bedroom. Green stood approximately …
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DELL, Judge.
George Emmett Green appeals from a judgment and sentence imposed after a jury found him guilty of possession of cocaine. He asserts that the State presented insufficient evidence to sustain the conviction. We agree and reverse.
A police officer and a confidential informant negotiated the purchase of five kilograms of cocaine with several individuals, other than appellant. The police officer and the confidential informant entered the bedroom of an apartment to complete the transaction. In the bedroom they saw cocaine on a table and saw appellant standing about ten feet away. Appellant did not participate in any of the conversations concerning the cocaine nor did he have any physical contact with it. After completing the negotiations the police officer left the room to signal the arrest. The police arrested appellant and the others in the apartment.
. Appellant argues that the State failed to prove that he had constructive possession of the cocaine. In Wale v. State, 397 So. 2d 738, 739 (Fla. 4th DCA 1981), we held that three elements must be proved to establish constructive possession: “(1) The accused must have dominion and control over the contraband; (2) The accused must have knowledge that the contraband is within his presence, and; (3) The accused must have knowledge of the illicit nature of the contraband.” Appellee presented sufficient evidence to establish the second and third elements only. The evidence established appellant’s presence in a room with cocaine in plain view, and established that appellant knew of the illicit nature of the contraband. However, appellant did not reside at the apartment, and appellee did not present other circumstantial evidence to establish that appellant had the ability to exercise dominion and control over the cocaine.
In Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984), the Third District Court of Appeal stated:
Mere proximity to contraband, without more, is legally insufficient to prove possession. Bass v. United States, 326 F. 2d 884 (8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964). In many instances, however, the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found. For this reason, the cases have sharply distinguished between the culpability of a mere visitor from that of an owner or an occupant of premises containing illicit drugs in plain view. Compare Brown (ownership and/or joint occupancy of premises is sufficient to support a conviction for constructive possession as to each person where drugs are discovered in plain view in their presence) with Taylor v. State, 319 So. 2d 114 (Fla. 2d DCA 1975) (defendant’s proximity to marijuana in plain view was merely circumstantial evidence insufficient to support conviction for constructive possession where defendant did not own or live on the premises and did not have control or joint control of the premises or the drugs).
See also Gonzalez v. State, 455 So. 2d 1131 (Fla. 2d DCA September 19, 1984) and Kickasola v. State, 405 So. 2d 200 (Fla. 3d DCA 1981).
Appellee misplaces its reliance on Brown v. State, 428 So. 2d 250 (Fla.1983), cert. denied, — U.S. —, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), since it did not prove that appellant resided at the apartment. Appellee’s evidence did not establish that appellant had dominion and control over the contraband, and therefore we reverse appellant’s conviction and remand with directions that he be discharged.
REVERSED and REMANDED.
LETTS and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988)…t to prove possession, and courts have distinguished between cases where defendant is a mere visitor rather than an occupant. See Agee v. State, 522 So. 2d 1044 (Fla. 2d DCA 1988); Brooks v. State, 501 So. 2d 176 (Fla. 4th DCA 1987); Green v. State, 460 So. 2d 986 (Fla. 4th DCA 1984); [*59] Johnson; Taylor v. State, 319 So. 2d 114 (Fla. 2d DCA 1975). Here, the evidence established the elements of appellant’s constructive possession: he promised to return the officer’s money if he was dissatisfied with the pur…
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Karmann Jean v. State, 638 So. 2d 995 (Fla. 4th DCA 1994)…he ability to maintain control over those cocaine rocks and what the state must present to avoid a motion for judgment of acquittal on that issue. The difficulty the courts have experienced in grappling with this problem is noted in Green v. State, 460 So. 2d 986, 987 (Fla. 4th DCA 1984), where we explained: In Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984), the Third District Court of Appeal stated: Mere proximity to contraband, without more is legally insufficient to prove possession. Bass v. United…
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Epta Brooks and Daphne Mollisom v. State, 501 So. 2d 176 (Fla. 4th DCA 1987)…The accused must have dominion and control over the contraband; (2) The accused must have knowledge that the contraband is within his presence, and; (3) The accused must have knowledge of the illicit nature of the contraband.” [*178] Green v. State, 460 So. 2d 986 (Fla. 4th DCA 1984). See also Brown v. State, 428 So. 2d 250 (Fla.1983). All that the evidence against Daphne shows is that she was found sitting on the bedroom floor, talking on the telephone, in front of a closet containing cocaine. Close proximit…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 428 So. 2d 250 (Fla. 1983)
- Wale v. State, 397 So. 2d 738 (Fla. 4th DCA 1981)
- Westley Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984)
- Delta Eng'g Corp. v. Scott, 377 U.S. 905 (U.S. 1964)
- Tenenbaum v. United States, 377 U.S. 905 (U.S. 1964)
- Bass v. United States, 326 F.2d 884 (8th Cir. 1964)
- Cent. & S. Fla. Flood Control Dist. v. Deadwyler, 319 So. 2d 114 (Fla. 2d DCA 1975)
- Odessa D. Taylor v. State, 319 So. 2d 114 (Fla. 2d DCA 1975)
- Kickasola v. State, 405 So. 2d 200 (Fla. 3d DCA 1981)
- Gonzalez v. State, 455 So. 2d 1131 (Fla. 2d DCA 1984)