544 F.2d 786 (5th Cir. 1977), 75-4158, United States v. Wynn

Docket Nº:75-4158.
Citation:544 F.2d 786
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mark Francis WYNN, Defendant-Appellant.
Case Date:January 03, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 786

544 F.2d 786 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


Mark Francis WYNN, Defendant-Appellant.

No. 75-4158.

United States Court of Appeals, Fifth Circuit

January 3, 1977

Page 787

Robert Edward Carrigan, Decatur, Ga. (Court appointed), Robert A. Harper, Jr., Gainesville, Fla., for defendant-appellant.

Nicholas P. Geeker, U. S. Atty., Stewart J. Carrouth, Clifford L. Davis, Asst. U. S. Attys., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

SIMPSON, Circuit Judge:

In response to a citizen's report that marijuana plants were being grown in an open field under some power lines in Hawthorne, Alachua County, Florida, a county law enforcement officer went to the area to investigate. He found 40 to 50 marijuana plants growing approximately 100 yards from an occupied house. He reported his find and went out the next day with another officer to pull the plants up.

While the officers were gathering the plants, appellant, Mark Francis Wynn, Jr., drove up to the house near the field. As the appellant got out of his car, one of the officers called him over and asked him if he owned the house. Appellant said that he did not but that a friend of his was the owner. When asked by the officers if his friend was home, appellant said he did not know but suggested they go to the house and find out. Appellant walked into the house first, followed shortly thereafter by the officers. There were three individuals sleeping in various rooms of the house, and there was marijuana in plain view in various parts of the house. The owner of the home was not present but all other occupants of the house, including appellant, were placed under arrest for violation of a state law regarding possession of marijuana. 1

At the county jail, an inventory search of Wynn yielded a quantity of counterfeit Federal Reserve Notes. 2 He was subsequently charged by a federal indictment with a violation of Title 18 U.S.Code, Section 472 3, for possessing counterfeit Federal Reserve Notes.

Page 788

Appellant's motion to suppress the counterfeit notes as products of an unlawful arrest was denied. Appellant was tried before a jury and convicted of the § 472 offense. He was sentenced by the court to confinement for five years. The execution of the sentence was suspended with supervised probation for five years.

The issue on appeal is whether the arresting officers had probable cause to arrest appellant for possession of marijuana, for if the arrest was illegal the conviction which was based on evidence found as a result of that arrest cannot stand.

Where arrest is made under a state, rather than a federal, statute, the requisite standard of probable cause for a lawful arrest is determined by state law, provided such law meets federal constitutional standards. United States v. Romano, 5 Cir. 1973, 482 F.2d 1183, 1189. See United States v. DiRe, 1948, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210; Nicholson v. United States, 5 Cir. 1966, 355 F.2d 80, 83, cert. denied, 384 U.S. 974, 86 S.Ct. 1866, 16 L.Ed.2d 684; Hart v. United States, 5 Cir. 1963, 316 F.2d 916, 919.

In United States v. DiRe, supra, 332 U.S. at 589-590, 68 S.Ct. at 226, the Supreme Court noted that

in the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress . . . the arrest by judicial process for a federal offense must be 'agreeably to the usual mode of process against offenders in such State.' There is no reason to believe that state law is not an equally appropriate standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule.

Although appellant was prosecuted for a federal offense, he was arrested for a state offense, possession of marijuana in violation of Fla.Stat.Ann., Section 893.03(1)(c)(10). The Florida standard of probable cause governs the validity of the arrest.

The Supreme Court of Florida defines probable cause "as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Dunnavant v. State, Fla.1950,46 So.2d 871, 874. See State v. Neri, D.C.A.Fla. 2, 1974, 290 So.2d 500, 501. 4 Suspicion alone does not constitute probable cause for arrest. Betancourt v. State, D.C.A.Fla. 3, 1969, 224 So.2d 378, 380-381.

For the arrest in the present case to have been valid, the officers must reasonably have believed that appellant was in possession of the marijuana, the requirement of possession being satisfied by either actual or constructive possession. Actual possession means either one's physical possession or that one has actual personal dominion over the thing allegedly possessed. Constructive possession, on the other hand, occurs when one has knowledge of the thing possessed "coupled with the ability to maintain control over it or reduce it to his physical possession, even though he does not have actual personal dominion." Spataro v. State, D.C.A.Fla. 2, 1965, 179...

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