S.B., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1995-07-12
No. 93-04081
BLUE and FULMER, JJ., concur.
657 So. 2d 1252 Florida District Court of Appeal, Second District (1995) Caution
Cited by 34 cases

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Holding

The court held that the state failed to prove constructive possession of marijuana because it did not establish the juvenile's knowledge of the contraband's presence and illicit nature beyond circumstantial evidence.


Headnotes

[1] To establish constructive possession of contraband, the state must prove the accused's dominion and control over the contraband, the accused's knowledge that the contraba…

[2] When contraband is found in a location accessible to multiple individuals, knowledge of the contraband's presence and the ability to control it cannot be inferred and mus…

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Facts & Procedural History

A juvenile, S.B., was a passenger in a car where marijuana was found in a container within a bag in the trunk. S.B. admitted owning the bag but denied…

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Opinion of the Court
ALTENBERND, Acting Chief Judge.

ALTENBERND, Acting Chief Judge.

S.B. appeals an adjudication of delinquency arising from his alleged possession of marijuana. We reverse because the state failed to prove that the marijuana was in S.B.’s constructive possession.

Shortly after midnight on Sunday, May 9, 1993, a Sarasota police officer stopped a car because one of its tail lights was not working. S.B. was one of several passengers in the car. After giving the driver a ticket for the equipment violation, the officer obtained permission to search the car for weapons.1 While searching the car with the assistance of a dog trained in narcotics detection, the officer located a plastic grocery bag in the trunk. Inside the bag, the officer found articles of clothing and a small green container imprinted with an Adventure Island logo. Inside the container, the officer found a small quantity of marijuana. The officer asked who owned the bag, but did not ask who owned the container. S.B. admitted that he owned the bag.

At the adjudicatory hearing, the state presented evidence from only the arresting officer. After the trial court denied a motion for judgment of dismissal, S.B. testified that the stop occurred while several teenagers were coming home from Adventure Island. S.B. admitted that he owned the bag and some wet clothing inside the bag, including a shirt. He denied that a second shirt or the small container belonged to him or that he had seen the container before the officer removed it from his bag. He had not purchased the container at Adventure Island, but believed another member of the group must have purchased the container. This is a close ease. In Gartrell v. State, 626 So. 2d 1364 (Fla.1993), the supreme court affirmed a conviction where a passenger in an automobile had marijuana and cocaine in her purse. The passenger was one of several people in the car, and she maintained the drugs had been placed in her purse by another occupant. In that case, however, the purse was in the passenger compartment and was behind the defendant’s head at the time of the stop. There was evidence of two different illegal drugs in at least two different compartments of the purse. The supreme court analyzed the case as one of actual possession.

In Skelton v. State, 609 So. 2d 716 (Fla. 2d DCA 1992), an officer stopped a ear and found a plastic bag containing cocaine under a passenger’s seat. This court reversed the conviction because the state faded to prove that the passenger had actual possession of the illegal drugs or that he had constructive possession. Likewise, in In re E.H., 679 So. 2d 364 (Fla. 4th DCA 1991), the Fourth District reversed a similar delinquency adjudication where the state failed to prove that a small quantity of cocaine was in the juvenile’s constructive possession when a car was occupied by two people.

We conclude that this case must be analyzed as a constructive possession case because the grocery bag was in the trunk of the vehicle and accessible to all of the occupants. To establish constructive possession, the state must prove three elements: (1) the accused’s dominion and control over the contraband; (2) the accused’s knowledge that the contraband is within his or her presence; and (3) the accused’s knowledge of the illicit nature of the contraband. Murphy v. State, 511 So. 2d 397 (Fla. 4th DCA 1987). Because the plastic bag in this case had been accessible to several people, knowledge of the presence of the contraband and the accused’s ability to maintain control over it may not be inferred, and must be established by independent proof. Brown v. State, 428 So. 2d 250 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Murphy, 511 So. 2d at 399.

Beyond the mere location of the marijuana, the state relies upon S.B.’s admission that he owned the grocery bag to establish constructive possession. Unfortunately, the officer never asked if S.B. owned the container, did not inventory the contents of the bag, and did not obtain fingerprints from the container. There is only circumstantial evidence to find that S.B. knew that the container was in his presence and that it contained a small quantity of marijuana. The case is distinguishable from circumstances in which the quantity of drugs is sizable or where the drugs create an odor throughout the automobile. See Emile F. Short, Annotation, Conviction Of Possession Of Illicit Drugs Found In Automobile Of Which Defendant Was Not Sole Occupant, 57 A.L.R.3d 1319, § 16 (1974). We recognize that the state is not required to rebut conclusively every possible variation of events that could be inferred from circumstantial evidence, but the state is obligated to present evidence which is inconsistent with the defendant’s theory of events. State v. Law, 559 So. 2d 187 (Fla.1989). In this case, the state’s limited evidence was not inconsistent with the theory of events presented by S.B. s testimony.

Reversed and remanded.

BLUE and FULMER, JJ., concur. . S.B. does not challenge either the search or the seizure in this appeal.


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Citator

Cited By (16 total)

  • Knight v. State, 186 So. 3d 1005 (Fla. 2016)
    …CA 2010), and Cook v. State, 571 So. 2d 530 (Fla. 1st DCA 1990); the decisions of the Second District Court of Appeal in P.M.M. v. State, 884 So. 2d 418 (Fla. 2d DCA 2004), N.K.W., Jr. v. State, 788 So. 2d 1036 (Fla. 2d DCA 2001), and S.B. v. State, 657 So. 2d 1252 (Fla. 2d DCA 1995); and the decision of the Fourth District Court of Appeal in E.H.A. v. State, 760 So. 2d 1117 (Fla. 4th. DCA 2000). The conflict concerns the proper application of the circumstantial evidence standard of review and whether the stan…
  • Evans v. State, 32 So. 3d 188 (Fla. 1st DCA 2010)
    …ting Wale v. State, 397 So. 2d 738, 740 (Fla. 4th DCA 1981)). Questioning what “independent proof’ the prosecution offered to prove constructive possession of MDMA and Carisoprodol in the jointly occupied premises, appellant relies on S.B. v. State, 657 So. 2d 1252 (Fla. 2d DCA 1995) (concluding that the State failed to prove S.B. constructively possessed marijuana found in a grocery bag in the trunk of a car carrying him and several other passengers, where, although S.B. admitted owning the bag, the officer n…
  • Earle v. State, 745 So. 2d 1087 (Fla. 4th DCA 1999)
    …his case. See Thomas v. State, 743 So. 2d 1190 (Fla. 4th DCA 1999); Gueits v. State, 566 So. 2d 829 (Fla. 4th DCA 1990); McClain; Manning v. State, 355 So. 2d 166 (Fla. 4th DCA 1978); Green v. State, 667 So. 2d 208 (Fla. 2d DCA 1995); S.B. v. State, 657 So. 2d 1252 (Fla. 2d DCA 1995); Cordero v. State, 589 So. 2d 407 (Fla. 5th DCA 1991); Moffatt; King v. State, 556 So. 2d 490 (Fla. 1st DCA 1990). For example, in Green, a trooper stopped the defendant for speeding in a rental car northbound from Miami. The def…

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