THE STATE OF FLORIDA, APPELLANT,
v.
EDUARDO RIVA DURAN, APPELLEE
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The issue of knowledge, an element of constructive possession, is an ultimate fact question for the jury and not subject to a pretrial motion to dismiss.
[1] Knowledge, as an element of constructive possession, is an ultimate question for the jury and is not subject to a motion to dismiss under Florida Rule of Criminal Procedu…
[2] A trial court must deny a motion to dismiss if the State files a traverse that specifically denies under oath the facts alleged in the motion.
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Join FLexlaw to unlock all legal intelligencePolice surveilled an apartment based on a tip and observed a man with a bag enter a white car. The car was later stopped, and drugs were found in a se…
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FERGUSON, Judge.
The State appeals a written order granting a sworn motion to dismiss a cocaine trafficking case. We reverse.
In response to a telephone tip from an allegedly confidential source, Metro-Dade officers set up a routine surveillance. The detectives had been informed of a planned narcotics transaction at a particular southwest apartment building, involving a white vehicle.
While surveying in the vicinity of the identified building, police officers observed an elderly male standing in the parking lot for about twenty minutes holding a brown paper shopping bag. Its contents were not visible. A white car drove up which the man entered on the passenger side. After approximately fifteen minutes, the man exited the vehicle — without the brown bag— and disappeared empty-handed into the building.
The officers followed the white car until the driver and sole occupant of the car — defendant below, Eduardo Riva Duran— stepped out of the vehicle near a home on Old Cutler Road. Duran agreed to talk with an officer who had exited the unmarked police car. Duran further consented to a search of the car which, it was discovered, was not registered to him. A bag contain ing a ledger detailing drug transactions was found on the front seat. An empty-brown paper bag — identified as the one which was previously seen filled during the surveillance — was on the back seat. A narcotics dog alerted for the presence of illegal drugs in the area of the back seat. Three kilos of cocaine were eventually found in a secret compartment under the back seat.
Duran was arrested and charged with trafficking in cocaine. He filed a sworn motion to dismiss alleging that the material facts failed to demonstrate that he knew that cocaine was hidden in the automobile. The State filed a traverse specifically denying the material allegations of Duran’s motion to dismiss, and a demurrer by which it contended that the issues of knowledge and constructive possession are not subject to a determination on a pretrial sworn motion to dismiss. Nevertheless, the trial court granted the rule 3.190(c)(4) motion to dismiss on grounds that the undisputed facts failed to establish knowledge or constructive possession of the drugs.
Generally, the issue of knowledge, as an element of constructive possession, Brown v. State, 428 So. 2d 250 (Fla.), cert, denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), is an ultimate question which a jury must decide on factual inferences; it is not subject to a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). State v. Farrugia, 419 So. 2d 1118, 1120 (Fla. 1st DCA 1982). See also S.T.N. v. State, 474 So. 2d 884 (Fla. 4th DCA 1985) (knowledge is not a proper issue to be decided on a motion to dismiss); Cummings v. State, 378 So. 2d 879 (Fla. 1st DCA 1979) (knowledge is an ultimate fact question not subject to a motion to dismiss under Rule 3.190(c)(4)), cert, denied, 386 So. 2d 635 (Fla.1980); State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981) (whether the defendant knew of the presence of a controlled substance, in light of the State’s traverse, was an ultimate fact question not subject to a motion to dismiss). There are no exceptional facts in this case that would render the general rule inapplicable.
Duran relies principally on a probation revocation case, Rita v. State, 470 So. 2d 80 (Fla. 1st DCA), rev. denied, 480 So. 2d 1296 (1985), and State v. Rita, 451 So. 2d 894 (Fla. 3d DCA), rev. denied, 459 So. 2d 1041 (Fla.1984).1 Rita is factually distinguishable. Edmund Rita was stopped while driving a refrigerator truck containing bales of marijuana found in a double padlocked rear cargo compartment. The court, without discussion of the procedural issue, held the evidence of knowledge insufficient to establish constructive possession of drugs. Rita had neither a key nor other physical access to the outer cargo area filled-with the illicit drugs. In Rita there was also a passenger in the truck, presenting a joint occupancy issue which is not present in this case.
In light of the traverse on the ultimate fact question of knowledge, the motion to dismiss should have been denied. See State v. Johnson, 398 So. 2d 500 (Fla. 3d DCA 1981); Fla.R.Crim.P. 3.190(d) (a motion to dismiss shall be denied if the State files a traverse which with specificity denies under oath the facts alleged).
Reversed and remanded for further proceedings.
. The first district’s opinion provides the underlying facts for the third district's case.
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Citator
Cited By (15 total)
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State v. Ferris Michele Paleveda, 745 So. 2d 1026 (Fla. 2d DCA 1999)…ons. Miller, 710 So. 2d at 687. Since the element of knowledge in a possession case is a question of fact, that element is not a proper consideration on a motion to dismiss. See State v. St. Jean, 658 So. 2d 1056 (Fla. 5th DCA 1995); State v. Duran, 550 So. 2d 45 (Fla. 3d DCA 1989); S.T.N. v. State, 474 So. 2d 884 (Fla. 4th DCA 1985); see also State v. Savarino, 381 So. 2d 734 (Fla. 2d DCA 1980); Cummings v. State, 378 So. 2d 879 (Fla. 1st DCA 1979). The undisputed facts alleged in Paleveda’s motion to dism…
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State v. Snyder, 635 So. 2d 1057 (Fla. 2d DCA 1994)…state of mind, and state of mind, e.g. knowledge and intent, are not properly considered in ruling on a rule 3.190(c)(4) motion. Milton; State v. Rogers, 386 So. 2d 278 (Fla. 2d DCA), rev. denied, 392 So. 2d 1378 (Fla.1980). See also State v. Duran, 550 So. 2d 45 (Fla. 3d DCA 1989). In addition to the above-mentioned facts, a review of the appellee’s motion indicates that he attached and made a part of the motion the sworn information filed by the state and a copy of the inventory taken after the appel-lee…
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State v. Beyard ST. Jean, 658 So. 2d 1056 (Fla. 5th DCA 1995)…te these cases for the purpose of this opinion. First, we find that under the facts of these cases, a c-4 motion was an inappropriate vehicle to challenge the issue of knowledge as an element of constructive possession. The court in State v. Duran, 550 So. 2d 45, 46 (Fla. 3d DCA 1989), held: Generally, the issue of knowledge, as an element of constructive possession, Brown v. State, 428 So. 2d 250 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), is an ultimate question which a j…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Brown v. State, 428 So. 2d 250 (Fla. 1983)
- Strickland v. Roosevelt Cnty. Rural Elec. Coop., 463 U.S. 1209 (U.S. 1983)
- Sena v. United States, 463 U.S. 1209 (U.S. 1983)
- Cummings v. State, 378 So. 2d 879 (Fla. 1st DCA 1979)
- State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981)
- Rita v. State, 470 So. 2d 80 (Fla. 1st DCA 1985)
- In the Interest of S.T.N. v. State, 474 So. 2d 884 (Fla. 4th DCA 1985)
- Mills v. Fla. Dep't OF Labor & Emp. Sec., 398 So. 2d 500 (Fla. 3d DCA 1981)
- State v. Johnson, 398 So. 2d 500 (Fla. 3d DCA 1981)
- Williams v. State, 419 So. 2d 1118 (Fla. 4th DCA 1982)