JERALD ANTHONY WADE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wade was convicted of constructive possession of marijuana, cocaine, and paraphernalia after police found drugs on a dresser in a hotel room where he was present. The court reversed his convictions, holding that mere presence as a visitor in a room with openly displayed contraband is insufficient to establish constructive possession as a matter of law.
The court held that Wade's convictions for constructive possession on all three counts must be reversed because mere presence as a visitor in a room with openly displayed contraband is insufficient as a matter of law to prove dominion and control over the items.
[1] Constructive possession exists where the accused, without physical possession, knows of the controlled substance's presence and has the ability to maintain control over i…
[2] To establish constructive possession, the state must prove the accused had dominion and control over the contraband, knew of its presence, and knew of its illicit nature.
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Join FLexlaw to unlock all legal intelligence“Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance.”
Establishes the legal standard for constructive possession under Florida law.
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Join FLexlaw to unlock all legal intelligenceIn November 1988, police conducted a late-night sweep of a Pensacola hotel and observed through an open doorway a room occupied by Wade and four other…
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PER CURIAM.
This cause is before us on appeal of appellant’s convictions for constructive possession of marijuana, cocaine, and paraphernalia. Appellant has presented three issues for our consideration, (1) whether the evidence was sufficient to support convictions for constructive possession on all three charges, (2) whether the 1988 amendments to the Habitual Offender Act were constitutional, and (3) whether the trial court erred in sentencing appellant as a habitual offender without making the requisite findings. Because we find appellant’s first argument meritorious, we need not address the other two.
Appellant and four others were arrested in November 1988 when police made a late-night “sweep” of a Pensacola hotel. When police looked through an open doorway into the room appellant and the others occupied, they saw them standing around a dresser top covered by various illegal items. Among other things, police could see marijuana, rolling papers, a crack pipe, and razor blades. The smell of burnt marijuana lingered in the air. Police arrested the occupants and subsequently learned that one of appellant’s co-defendants had rented the room. There was no testimony that appellant was seen using any of the items on the dresser top, which police subsequently discovered included crack cocaine. There was also no testimony that appellant touched or in any other way demonstrated control over the contraband.
Because police did not find appellant in physical possession of the illegal drugs or paraphernalia, his convictions necessarily rested on a constructive possession theory. In Brown v. State, 428 So. 2d 250, 252 (Fla.1983), cert. denied, Brown v. Florida, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), the Supreme Court held that: “Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance.” Hively v. State, 336 So. 2d 127, 129 (Fla. 4th DCA 1976).
To establish constructive possession, the state must show that the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband. Wale v. State, 397 So. 2d 738 (Fla. 4th DCA 1981).
If the premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof. Wale; Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967). [emphasis added]
Because appellant was only a visitor, rather than someone who owned, leased, or resided in the room, his mere proximity to the contraband found in plain view was insufficient to convict him. Case law has sharply distinguished the culpability of mere visitors from that of owners or occupants of premises containing openly-displayed illicit drugs. Green v. State, 460 So. 2d 986 (Fla. 4th DCA 1984); Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984); Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988).
After thoroughly reviewing the record, we have concluded that the State proved only that appellant was in the room at the same time four other people were there. As a matter of law, this was insufficient to prove his dominion and control over the items on the dresser top. Accordingly, appellant’s convictions on all three counts are reversed, and he is discharged.
BOOTH, THOMPSON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Sundin v. State, 27 So. 3d 675 (Fla. 2d DCA 2009)…45 (holding that the State failed to prove that a hotel visitor had control over marijuana found in plain view in a hotel room because the State did not provide any evidence other than the defendant’s mere proximity to the marijuana); Wade v. State, 558 So. 2d 107, 108 (Fla. 1st DCA 1990) (“Because appellant was only a visitor, rather than someone who owned, leased, or resided in the room, his mere proximity to the contraband found in plain view was insufficient to convict him.”). Accordingly, the trial cour…
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Harris v. State, 954 So. 2d 1260 (Fla. 5th DCA 2007)…and that the drugs were in the possession and control of the owner or other occupant of the premises). In this ease, the State was obligated to establish the control element by independent proof. J.S.M., 944 So. 2d at 1144; see also Wade v. State, 558 So. 2d 107 (Fla. 1st DCA 1990). We conclude the State failed to produce independent proof that Harris, as opposed to Caster, controlled the contraband located in the brown bag. Furthermore, the fact that Harris was in possession of a small amount of cocaine on…
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J.S.M. v. State, 944 So. 2d 1143 (Fla. 2d DCA 2006)…lain view in the presence of two or more joint occupants of the premises is sufficient to support a conviction for constructive possession). In a case such as this, the State must establish the element of control by independent proof. Wade v. State, 558 So. 2d 107, 108 (Fla. 1st DCA 1990) (citing Wale v. State, 397 So. 2d 738 (Fla. 4th DCA 1981)); Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967). The evidence in this case raises a strong inference that J.S.M. just happened to be in the hotel room when the…
Previewing 3 of 7 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)
- Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967)
- van Griffin v. State, 336 So. 2d 127 (Fla. 1st DCA 1976)
- Wale v. State, 397 So. 2d 738 (Fla. 4th DCA 1981)
- 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)
- Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988)
- Westley Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984)
- Green v. State, 460 So. 2d 986 (Fla. 4th DCA 1984)