ROY VERNON ZICCA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Zicca was convicted of unlawful marijuana possession after police searched his vehicle. The appellate court affirmed the conviction, holding that the search was lawful and that sufficient evidence supported the finding of possession based on the marijuana's open placement in his vehicle.
The court affirmed the conviction, holding that the search was lawful and that the trier of fact could properly infer Zicca's knowledge and possession of the marijuana based on its open placement on a shelf in his vehicle, which he owned and was operating at the time of the stop.
[1] A search of a vehicle is lawful when incident to a lawful arrest.
[2] Evidence found in plain view during a lawful search is admissible.
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Join FLexlaw to unlock all legal intelligence“It was within the province of the trier of fact to determine that this defendant had exclusive possession and control of the automobile which he owned with his wife as an estate by the entirety and which he was operating at the time he was stopped and arrested.”
Establishes that the jury could properly infer possession based on Zicca's ownership and operation of the vehicle
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Join FLexlaw to unlock all legal intelligenceZicca was driving a Volkswagen bus that he owned with his wife when police stopped the vehicle. Three other persons were present in the vehicle but we…
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The defendant below appeals from his adjudication of guilt on the charge of unlawful possession of marijuana.
He argues that the trial court should have granted his motion to suppress the evidence since there was no valid reason for a search of the vehicle which he was driving at that time. He relies on Riddlehoover v. State, Fla.App.1967, 198 So.2d 651.
In Riddlehoover, it was apparent that the officers had stopped the defendant in order to search him, or his vehicle, under the pretext of a minor traffic violation. Those facts have not been established in this case. We find that there was a lawful arrest and that the motion to suppress the evidence was properly denied. See Knight v. State, Fla.App.1968, 212 So.2d 900; Gagnon v. State, Fla.App.1968, 212 So.2d 337; and Miller v. State, Fla.App.1962, 137 So.2d 21.
The defendant contends that the State failed to prove the essential fact that he was in possession of this marijuana. He was driving a Volkswagen bus which he owned with his wife. She was not present in the vehicle when it was stopped and the arrest was made. There were present in the vehicle three other persons but they were allowed to leave and were not arrested.
The marijuana was found on a shelf behind the passenger side of the vehicle. It was an open, homemade shelf and the marijuana was sitting on this shelf in plain and open view.
The defendant did not testify but the police officer was permitted to testify that the defendant had told him that he did not know the drugs were there.
Under these limited facts, the defendant claims that the conviction should be reversed on the authority of Markman v. State, Fla.App.1968, 210 So.2d 486. It was within the province of the trier of fact to determine that this defendant had exclusive possession and control of the automobile which he owned with his wife as an estate by the entirety and which he was operating at the time he was stopped and arrested. The trier of fact could determine that the defendant must have had knowledge of marijuana sitting in open view on a homemade shelf in his automobile in a plastic container, which was also described as a cellophane bag. See Frank v. State, Fla.App.1967, 199 So.2d 117; Spataro v. State, Fla.App.1965, 179 So.2d 873.
The judgment of conviction herein ap pealed is, therefore,
Affirmed.
(dissenting).
The essential issue is whether the circumstance that a package of marijuana was in a vehicle containing three passengers and the defendant driver established that the defendant was guilty of unlawful possession of marijuana. I would hold that it did not because it does not exclude the reasonable hypothesis that one of the three passengers left the package in the vehicle when the police stopped the vehicle and permitted the passengers to leave. See Mayo v. State, Fla.1954, 71 So.2d 899, 904.
[*416] PEARSON, Chief Judge
(dissenting).
The essential issue is whether the circumstance that a package of marijuana was in a vehicle containing three passengers and the defendant driver established that the defendant was guilty of unlawful possession of marijuana. I would hold that it did not because it does not exclude the reasonable hypothesis that one of the three passengers left the package in the vehicle when the police stopped the vehicle and permitted the passengers to leave. See Mayo v. State, Fla.1954, 71 So. 2d 899, 904.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967)
- Spataro v. State, 179 So. 2d 873 (Fla. 2d DCA 1965)
- Mayo v. State, 71 So. 2d 899 (Fla. 1954)
- Adler v. Copa Corp., 212 So. 2d 337 (Fla. 3d DCA 1968)
- Ira Dennis Markman v. State, 210 So. 2d 486 (Fla. 3d DCA 1968)
- Amos Honor Miller v. State, 137 So. 2d 21 (Fla. 2d DCA 1962)
- Riddlehoover v. State, 198 So. 2d 651 (Fla. 3d DCA 1967)
- Knight v. State, 212 So. 2d 900 (Fla. 3d DCA 1968)