HERMAN WEAVER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Herman Weaver appeals his probation revocation for alleged heroin trafficking. The court reversed because the State failed to present sufficient evidence that the substance involved was actually heroin, relying instead on unreliable field tests and inadmissible hearsay.
The court held that the State failed to present sufficient proof that the substance was heroin. Although hearsay is admissible in probation revocation hearings, a revocation cannot be based on hearsay alone, and the officers failed to establish independent, reliable identification of the substance based on their training or experience.
[1] A probation violation cannot be based solely on hearsay evidence.
[2] Evidence of contraband identification must be reliable and based on the observations of a witness with experience and training.
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Join FLexlaw to unlock all legal intelligence“Although hearsay evidence is admissible in a probation revocation hearing, a revocation cannot be based on hearsay alone.”
Establishes the critical evidentiary standard that hearsay alone is insufficient to support probation revocation
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Join FLexlaw to unlock all legal intelligenceWeaver was charged with trafficking in heroin based on an affidavit alleging he sold heroin to two undercover officers, Smith and Brinson. At the revo…
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PER CURIAM.
Weaver appeals from an order finding him guilty of a probation violation. He alleges, and we agree, that the State failed to present sufficient proof to establish the violation.
An Affidavit for Violation of Probation was filed by the State charging the defendant with trafficking in heroin. At the probation revocation hearing, two undercover officers, Smith and Brinson, testified that the defendant sold them heroin.
Nevertheless, the only non-hearsay evidence introduced into the record showing that the white substance delivered to the undercover agents was, in fact, heroin, was the testimony of Agent Brinson who said he conducted a field test on the substance shortly after it was delivered. On cross-examination, however, Brinson could not remember the name of the field test and stated that he did not know whether such a test is reliable. He also admitted that he could not say, independent of the test, whether the substance he tested was heroin. Agent Smith testified that he believed the white powder was heroin but that he did not perform a field test on the powder or use his sense of smell, taste, or touch to form his opinion but, instead, relied on Agent Brinson’s statement that the field test was positive. No chemist or other qualified technician testified that the substance was heroin.
Although the State claims that laboratory reports identifying the white powder as heroin were submitted to the trial court at the hearing, there is no evidence that the reports were ever admitted into evidence. Three laboratory reports were submitted to the appellate court by the State; one dated 1982 is obviously unrelated to the case, and the others, dated 1985, have no markings to indicate that they were marked for identification for admission into evidence. We cannot accept the filing of the reports as a supplement to the appellate record where those documents were never admitted into evidence at the probation hearing. Gulf Oil Co. v. Poole, 426 So. 2d 1254 (Fla. 1st DCA 1983).
The remaining proof, relied upon by the State in support of the trial court’s finding of a violation, is hearsay evidence. Although hearsay evidence is admissible in a probation revocation hearing, a revocation cannot be based on hearsay alone. Arnold v. State, 497 So. 2d 1356 (Fla. 4th DCA 1986) (probation cannot be revoked on ground of possession of cocaine where only proof that substance in question was cocaine was oral hearsay reference to lab test results); Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985). Furthermore, the defendant’s statement, as related by one of the officers, that the white powder was “exceptionally good,” does not constitute an admission that the substance was heroin.
The evidence was insufficient to establish that the substance involved was heroin. Cf. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988) (where positive lab reports were admitted into evidence and defendant admitted that substance was cocaine and the officer testified to a positive field test, evidence was sufficient to establish that substance was cocaine).
Proof of the identification of contraband does not require scientific tests; nevertheless, it must be reliable and based on the observations of a witness with experience and training. A.A. v. State, 461 So. 2d 165, 166 (Fla. 3d DCA 1984).
In this case it was not established that the officers could independently, by training or experience, identify the substance with sufficient reliability to support a finding that the defendant was guilty of a probation violation. See Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981) (in probation violation hearing, proof must be sufficient to satisfy conscience of court that substantial violation of probation has occurred); Kirk v. State, 400 So. 2d 540 (Fla. 3d DCA 1981) (same).
Reversed and remanded.
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Citator
Cited By (17 total)
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Sinclair v. State, 995 So. 2d 552 (Fla. 3d DCA 2008)…d at 892 with Sharpe v. State, 589 So. 2d 963, 963-64 (Fla. 3d DCA 1991) (reversing probation violation where neither a laboratory analysis nor “any witness identified] the substances as cocaine based on training or experience”) and Weaver v. State, 543 So. 2d 443, 443 (Fla. 3d DCA 1989) (reversing a probation violation where officer testified “he believed the white powder was heroin but that he did not use his sense of smell, taste, or touch to form his opinion”); see also United States v. Robinson, 144 F. 3…
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Carter v. State, 82 So. 3d 993 (Fla. 1st DCA 2011)…not testify to any independent ability to identify cocaine or its metabolites in urine. Mr. Carter argues that the state did not establish the field test was reliable or performed by anybody who could interpret it reliably, citing Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989), where the only non-hearsay evidence the state used to prove a substance was heroin, at Weaver’s revocation of probation hearing, was the testimony of the agent who conducted a field test on the substance. The agent could not reme…
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Bell v. State, 179 So. 3d 349 (Fla. 5th DCA 2015)…State, 82 So. 3d 993 (Fla. 1st DCA 2011) (distinguishing Terry where probation officer testifying to test results “gave no indication that he was certified to administer the test, or had in fact administered it with any frequency”); Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989) (holding that the officer’s testimony about the field test results, standing alone, could not support the finding of a violation where the officer did not even know the name of the field test or that it was reliable). There is at…1 / 2
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- A.A. v. State, 461 So. 2d 165 (Fla. 3d DCA 1984)
- Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)
- Bass v. State, 473 So. 2d 1367 (Fla. 1st DCA 1985)
- Cary Arnold v. State, 497 So. 2d 1356 (Fla. 4th DCA 1986)
- Kirk v. State, 400 So. 2d 540 (Fla. 3d DCA 1981)
- Gulf OIL Corp. v. Poole, 426 So. 2d 1254 (Fla. 1st DCA 1983)