JOHN E. NAST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this criminal appeal, the court reversed a conviction based on incriminating statements obtained following a warrantless arrest, holding that the officer lacked probable cause to arrest the appellant for constructive possession of marijuana when the appellant merely sat on a bench while his companion disposed of contraband.
The court held that the facts presented did not constitute probable cause for a warrantless arrest based on constructive possession. Because the arrest was unlawful, the incriminating statements obtained as a result of the arrest were inadmissible, and the conviction was reversed.
[1] A warrantless arrest is unlawful if the arresting officer lacks probable cause to believe the arrestee possessed contraband, either actually or constructively.
[2] Constructive possession requires proof of actual knowledge of the contraband's presence and the ability to control it, particularly when the arrestee does not have exclus…
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Join FLexlaw to unlock all legal intelligence“Constructive possession has been defined as the ability to reduce to actual possession and control.”
Establishes the legal standard for constructive possession that the court applied in evaluating whether probable cause existed.
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Join FLexlaw to unlock all legal intelligenceOn November 11, 1974, Officer Britts observed two young men, including appellant Nast, seated on a public bench. When the officer approached, Nast's c…
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HOBSON, Judge.
We have for review a case involving incriminating statements obtained as a result of a warrantless arrest, the legality of which is at issue.
Following the lower court’s denial of the appellant’s motion to suppress his statements, the appellant withdrew his plea of not guilty and entered a plea of nolo con-tendere to possession of more than five grams of marijuana, reserving his right to appeal the order denying his motion, as permitted by State v. Ashby, Fla.1975, 245 So. 2d 225. The factual basis on which the lower court accepted his nolo plea was provided solely by the incriminating statements. We reverse.
At two o’clock in the afternoon of November 11, 1974, Officer Britts of the Clearwater Police Department observed two young men, one of whom was the appellant, seated on a public bench, apparently talking to one another. Alongside the bench he saw what appeared to be a bundle of clothing, so he decided to find out where the two young men were staying. As he approached them in his patrol car he observed the appellant’s companion walk to the seawall and perform a throwing motion. The appellant remained seated at the bench. Britts left his cruiser, walked over to the seawall and observed a plastic baggie containing what appeared to be marijuana. He directed the appellant’s companion to retrieve the baggie, examined the contents, and determined that the substance was in fact marijuana; whereupon, he arrested both young men, searched them, and took them into custody. No contraband was found on the person of the appellant. The two were advised of their constitutional rights at the scene and again at the police station. Approximately half an hour later, while in custody, the appellant made incriminating statements to the effect that he and his companion were holding the marijuana for a friend, and that they were preparing to smoke some of it when they saw Britts approaching.
Appellant contends that his arrest was unlawful because Officer Britts lacked probable cause to believe that the appellant had either actual or constructive possession of the contraband. We agree.
In the case at bar it is evident from the record that Officer Britts had no indication that the appellant had ever had actual possession of the marijuana found at the scene. Therefore his decision to arrest the appellant had to be based on the reasonable belief that the appellant had constructive possession.
Constructive possession has been defined as the ability to reduce to actual possession and control. Spataro v. State, Fla.App.2d 1965, 179 So. 2d 873; Frank v. State, Fla.App.1st 1967, 199 So. 2d 117. In order to establish constructive possession of contraband when the accused does not have exclusive possession of the premises where the contraband is found, actual knowledge of its presence and the ability to control it may not be inferred but must be proven. Frank v. State, supra; Langdon v. State, Fla.App.3d 1970, 235 So. 2d 321.
The instant record discloses no evidence on which the arresting officer at the time of the arrest could reasonably conclude that the appellant knew of the presence of the marijuana or had the ability to reduce it to his possession and control. Britts saw only that the appellant was in a public place in the middle of the afternoon, apparently conversing with an acquaintance who was caught disposing of the contraband.
We hold that these facts, without more, were insufficient to constitute probable cause for the appellant’s warrantless arrest based on constructive possession. Thus his incriminating statements made within thirty minutes of his unlawful arrest and obtained as a result of his unlawful arrest were inadmissible against him. Fla.Const. Art. I, § 12; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416; Phelper v. Decker, 5th Cir. 1968, 401 F. 2d 232; United States v. Owen, 5th Cir. 1974, 492 F. 2d 1100.
Accordingly, the appellant’s incriminating statements are suppressed, the judgment and sentence are reversed and the cause remanded.
McNULTY, C. J., and GRIMES, J., concur.
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Edwards v. State, 532 So. 2d 1311 (Fla. 1st DCA 1988)…g was found on Williams. The court found that under the circumstances the police did not have probable [*1315] cause to arrest Williams, and the heroin seized in a subsequent search of his person at the police station should have been suppressed. . 333 So. 2d 103 (Fla. 2d DCA 1976). An officer observed Nast and an acquaintance on a public bench, apparently conversing. As he approached them, the other man walked to the seawall and made a throwing motion. The officer recovered a baggie of marijuana and arreste…
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Thompson v. State, 375 So. 2d 633 (Fla. 4th DCA 1979)…its proof of the defendant’s constructive possession, including knowledge by the accused of the drugs found there. See, e. g., Britton v. State, 336 So. 2d 663 (Fla. 1st DCA 1976); Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976); Nast v. State, 333 So. 2d 103 (Fla. 2d DCA 1976); Tanksley v. State, 332 So. 2d 76 (Fla. 2d DCA 1976); Moore v. State, 325 So. 2d 466 (Fla. 4th DCA 1976); Willis v. State, 320 So. 2d 823 (Fla. 4th DCA 1975); Taylor v. State, 319 So. 2d 114 (Fla. 2d DCA 1975); Medlin v. State, 27…
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Brown v. State, 355 So. 2d 138 (Fla. 3d DCA 1978)…ppress. If the appeal is successful for the defendant, the judgment of conviction is reversed with directions to afford the defendant an opportunity to withdraw his nolo contendere plea. State v. Ashby, 245 So. 2d 225, 228 (Fla.1971); Nast v. State, 333 So. 2d 103 (Fla.2d DCA 1976); Tiller v. State, 330 So. 2d 792 (Fla.1st DCA 1976); Stanley v. [*140] State, 327 So. 2d 243 (Fla.2d DCA 1976); Wallace v. State, 321 So. 2d 97 (Fla.4th DCA 1975); Perry v. State, 296 So. 2d 505 (Fla.3d DCA 1974); Jackson v. State,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Brown v. Illinois, 422 U.S. 590 (U.S. 1975)
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967)
- Spataro v. State, 179 So. 2d 873 (Fla. 2d DCA 1965)
- Phelper v. Decker, 401 F.2d 232 (5th Cir. 1968)
- United States v. Owen, 492 F.2d 1100 (5th Cir. 1974)
- Langdon v. State, 235 So. 2d 321 (Fla. 3d DCA 1970)