ARTHUR HERBERT PORTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Arthur Herbert Porter was convicted of possession of cannabis after a bench trial. The Florida appellate court affirmed his conviction, rejecting his arguments that the search lacked probable cause and that the State failed to prove he owned or possessed the contraband found in the vehicle.
The trial court properly denied the suppression motion because probable cause existed based on the observation of the bag being passed combined with the plain smell of burning marijuana. The trial court properly denied the acquittal motion because the evidence demonstrated at minimum constructive possession by Porter, who had knowledge of the bag's presence and ability to control it.
[1] A valid warrantless search of a vehicle is permissible if probable cause exists, meaning facts sufficient to warrant a person of reasonable caution to believe an offense…
[2] Probable cause for an arrest is determined by the facts and circumstances existing at the time, viewed from the perspective of the arresting officer, and what a reasonabl…
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Join FLexlaw to unlock all legal intelligence“A valid search of a vehicle may be had without a warrant, if probable cause for the search exists, i. e., facts sufficient to warrant a man of reasonable cause in the belief that an offense is being committed.”
Establishes the legal standard for warrantless vehicle searches
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Join FLexlaw to unlock all legal intelligencePolice officers observed Porter sitting in the driver's seat of a parked car. They saw him pick up a clear plastic bag from the dashboard area and pas…
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PER CURIAM.
The Defendant was charged by information with the crimes of possession of cannabis and carrying a concealed weapon. Following a trial by the court without a jury, the defendant was adjudged guilty of possession of cannabis and sentenced to four years in the state penitentiary.
On March 31, 1973, the arresting officer, while patrolling with another officer in an unmarked vehicle, observed the defendant and two other persons in a parked car. The officer testified that he saw the defendant, who was sitting in the driver’s seat, pick up a clear plastic bag from the area of the dashboard and pass it to the person in the passenger’s seat.
The defendant raises two points on appeal : First, that the trial court erred in denying his pre-trial motion to suppress the evidence because there was no probable cause to arrest or search him; second, that the trial court erred in denying his motion for acquittal because there were two other occupants of the car and the State failed to prove ownership of the car or of the bag.
It has been repeatedly held that a valid search of a vehicle may be had without a warrant, if probable cause for the search exists, i. e., facts sufficient to warrant a man of reasonable cause in the belief that an offense is being committed. Whether probable cause existed to make the arrest is to be determined from the facts and circumstances existing at the time viewed through the eyes of the arresting officer; that is, what a reasonable man, knowing all of the facts within the cognizance of the officer, would have believed under all the circumstances. Martin v. State, Fla.App.1967, 194 So. 2d 291.
It has also been held that smell alone is sufficient to constitute probable cause for a subsequent search for marijuana. United States v. Bowman, 487 F. 2d 1229 (10th Cir. 1973); United States v. Barron, 472 F. 2d 1215 (9th Cir. 1973); United States v. Campos, 471 F. 2d 296 (9th Cir. 1972); Fernandez v. United States, 321 F. 2d 283 (9th Cir. 1963); United States v. Anderson, 468 F. 2d 1280 (10th Cir. 1972). In the instant case, the observation of the bag and the cigarette being passed, plus the “plain smell” of the burning marijuana are sufficient probable cause to justify the arrest and search of the defendant. Turning now to the defendant’s second contention, we find no error in the trial court’s denial of the motion for acquittal. A defendant has constructive possession of contraband when he has knowledge of its presence coupled with his ability to maintain control over it or reduce it to his physical possession. Spataro v. State, Fla.App. 1965, 179 So. 2d 873. We are of the opinion that in this case there is ample evidence based upon testimony of the two officers, if not to show actual possession, then at least, to demonstrate constructive possession.
Therefore, for the reasons stated, the judgment and sentence appealed are affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Hornblower v. State, 351 So. 2d 716 (Fla. 1977)…. Gieseke, 328 So. 2d 16 (Fla.1976), the seller indicated he had plenty of “smoke,” and the officers smelled burning cannabis emanating from the trailer. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Porter v. State, 302 So. 2d 481 (Fla. 3d DCA 1974). But probable cause itself is not sufficient to support a warrantless search. As enunciated above, any warrantless search is presumed to be illegal unless there are exigent circumstances in addition to probable cause. The State su…
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Dixon v. State, 343 So. 2d 1345 (Fla. 2d DCA 1977)…d sight of smoke emanating from an automobile constitute probable cause to believe that both elements are satisfied as to all of the occupants of the vehicle and that each occupant had actual or constructive possession of marijuana. Porter v. State, 302 So. 2d 481 (Fla.3d DCA 1974).5 See also Mattson v. State, 328 So. 2d 246 (Fla.lst DCA 1976). The existence of probable cause to believe that the driver of the automobile was in possession of the marijuana was particularly apparent. See Zicca v. State, 232 So.…
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Miranda v. State, 354 So. 2d 411 (Fla. 3d DCA 1978)…warrant. See: Dixon v. State, 343 So. 2d 1345, 1348 (Fla. 2d DCA 1977); State v. Boyle, 326 So. 2d 225 (Fla. 2d DCA 1976); Mattson v. State, 328 So. 2d 246, 248 (Fla. 1st DCA 1976); Berry v. State, 316 So. 2d 72 (Fla. 1st DCA 1975); Porter v. State, 302 So. 2d 481 (Fla. 3d DCA 1974). It was impracticable to require the officers to procure a search warrant in view of the fact that the boat was mobile and capable of being moved from the jurisdiction before a search warrant could be obtained. Accordingly, the tr…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spataro v. State, 179 So. 2d 873 (Fla. 2d DCA 1965)
- Fernandez v. United States, 321 F.2d 283 (9th Cir. 1963)
- United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973)
- United States v. Barron, 472 F.2d 1215 (9th Cir. 1973)
- United States v. Anderson, 468 F.2d 1280 (10th Cir. 1972)
- Martin v. State, 194 So. 2d 291 (Fla. 3d DCA 1967)
- United States v. Campos, 471 F.2d 296 (9th Cir. 1972)