JESUS ZANDATE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jesus Zandate, a passenger in a vehicle stopped for an expired temporary tag, challenges the seizure of drugs found in his pocket during a pat-down search. The court reverses the denial of his suppression motion, holding that the deputy lacked probable cause to arrest Zandate based solely on marijuana found in a closed ashtray in the car, as there was no evidence Zandate knew of its presence.
The court held that there was no probable cause to arrest Zandate because the evidence did not show that he knew of the presence of the marijuana in the closed ashtray. Accordingly, the search of Zandate was unlawful, and the items seized from his pocket must be suppressed.
[1] A search incident to arrest is unlawful if the arrest itself was not supported by probable cause.
[2] Probable cause to arrest a passenger for possession of contraband found in a vehicle does not exist solely based on the passenger's proximity to the contraband.
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Join FLexlaw to unlock all legal intelligence“there was no probable cause to arrest the passenger after drugs were found in the car because the deputies did not have reason to believe that the passenger knew of the presence of the contraband”
Establishes the legal standard that a passenger cannot be arrested for drugs found in a vehicle without evidence the passenger knew of the contraband's presence.
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Join FLexlaw to unlock all legal intelligenceA deputy stopped a vehicle for an expired temporary tag. Both the driver and passenger Zandate exited the vehicle. The driver consented to a search of…
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FULMER, Acting Chief Judge.
Jesus Zandate appeals the denial of his motion to suppress drugs seized during the traffic stop of a car in which he was riding as a passenger. He argues that the drugs were seized pursuant to an unlawful search of his pocket. We reverse because the deputy did not have probable cause to arrest Zandate at the time of the search, and therefore, the search was illegal.
Deputy Aument testified at the suppression hearing that he stopped the car due to an expired temporary tag. Both the driver and Zandate, the front-seat passenger, stepped out of the vehicle. The driver gave the deputy consent to search the vehicle. The deputy did not speak to Zan-date. When he entered the car, the deputy smelled “a hint" of burnt marijuana. Upon opening the ashtray, the deputy detected a residual amount of marijuana. The driver indicated it was not his marijuana and consented to a pat-down search. The deputy then proceeded to search Zan-date who was standing off to the side. The deputy located a small baggie of marijuana and some powder cocaine in Zan-date’s pocket.
Zandate argues that reversal is required pursuant to Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996). We agree. In Rennard, this court concluded that although the initial stop and detention of a vehicle were valid, there was no probable cause to arrest the passenger after drugs were found in the car because the deputies did not have reason to believe that the passenger knew of the presence of the contraband. As a result, the search of the passenger was unlawful.
Here, there was no probable cause to arrest Zandate for possession of marijuana because the evidence did not show that Zandate knew of the presence of the substance in the closed ashtray. We find it significant that the deputy’s testimony did not indicate that the marijuana in the ashtray had been smoked recently. See Thomas v. State, 743 So. 2d 1190, 1193 (Fla. 4th DCA 1999) (where there was no evidence that marijuana cigarette had been recently consumed, the State failed to prove the defendant’s knowledge of the illicit nature of the cigarette found in car ashtray). Because “[m]ere proximity to contraband does not create probable cause of constructive possession,” the deputy’s discovery of the marijuana in the closed ashtray did not establish probable cause to arrest Zandate. See Rennard, 675 So. 2d at 1008. Because Zandate was searched pursuant to an unlawful arrest, the items seized from his pocket must be suppressed. See id.
Reversed and remanded with directions to grant the motion to suppress.
SALCINES and DAVIS,. JJ., Concur.
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C.M. v. State, 818 So. 2d 554 (Fla. 2d DCA 2002)…umstantially established by the defendant’s proximity to the contraband. The presence of marijuana smoke has likewise been deemed insufficient proof of the knowledge element of constructive possession in a group setting. See, e.g., Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000) (finding insufficient probable cause to arrest defendant for possession of marijuana found in the ashtray of a jointly occupied vehicle which smelled of burnt marijuana). The final circumstance which might potentially establish C.…
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J.A.C. v. State, 816 So. 2d 1228 (Fla. 5th DCA 2002)…fficient. Sierra v. State, 746 So. 2d 1250 (Fla. 5th DCA 1999). The presence of marijuana smoke has been deemed insufficient proof of the knowledge element in a group setting. C.M. v. State, 818 So. 2d 554 (Fla. 2d DCA 2002) (citing Zandate v. State 779 So. 2d 476 (Fla. 2d DCA 2000).) C.M. is instructive. While initiating a traffic stop, the officer saw what was later determined to be a marijuana cigar tossed from the window of the vehicle. The officer could not tell from which window the cigar was thrown, s…
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Perry v. State, 916 So. 2d 835 (Fla. 2d DCA 2005)…were insufficient to support the probable cause necessary to arrest Mr. Perry for constructive possession of paraphernalia. See Cady v. State, 817 So. 2d 948 (Fla. 2d DCA 2002); McGowan v. State, 778 So. 2d 354 (Fla. 2d DCA 2001); Zandate v. State, 779 So. 2d 476 (Fla. 2d DCA 2000); Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996); Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991); see also Walker ro. State, 741 So. 2d 1144 (Fla. 4th DCA 1999); Edwards v. State, 532 So. 2d 1311 (Fla. 1st DCA 1988). Th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996)
- Auline Thomas v. State, 743 So. 2d 1190 (Fla. 4th DCA 1999)