U.S. v. Wynn

• Decision Date: 03 January 1977
• Docket Number: No. 75-4158,75-4158
• Citation: 544 F.2d 786
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Francis WYNN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 786

544 F.2d 786

UNITED STATES of America, Plaintiff-Appellee, v. Mark Francis WYNN, Defendant-Appellant.

No. 75-4158.

United States Court of Appeals Fifth Circuit.

Jan. 3, 1977.

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.

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 So.2d 873, 877. ⁵

In the recent case of Nast v. Florida, D.C.A.Fla. 2, 1976, 333 So.2d 103, appellant Nast was sitting on a public bench with a friend when a police officer approached. Appellant's companion took a package he had next to him and threw it over an adjacent seawall. When the package was retrieved, marijuana was found in it. No contraband was found on appellant. The police officer arrested both men for possession of marijuana, and Nast was convicted. The Florida appellate court reversed the conviction, stating:

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. . . .

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 (the police officer) 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.

Id. at 105. See Frank v. State, D.C.A.Fla. 1, 1967, 199 So.2d 117, 120-121.

In the present case, the court below stated at the suppression hearing that there was nothing to connect appellant with the marijuana in the residence until appellant admitted having a "coming and going" relationship ⁶ with the owner of the home. The court denied appellant's motion to suppress solely because of this "coming and going relationship." ⁷ We disagree with the trial judge's reasoning that Wynn knew of the presence of the marijuana or had the ability to reduce it to his possession and control. Nast v. Florida, supra, at 105. To allow probable cause to be established by such a showing would subject appellant to arrest for prior association with persons who allegedly were engaged in nefarious activities or, alternatively, for mere presence in an area where criminal activities were allegedly taking place. No support for either position is to be found in Florida or federal jurisprudence.

In State v. Neri, D.C.A. 2, Fla.1974, 290 So.2d 500, appellee and his companion were seen by a police officer walking away from an unlighted house late at night. The police officer approached both men and asked for identification because there had been a number of robberies in the surrounding neighborhood. Appellee cooperatively and immediately produced an I.D. card and tendered it to the policeman for inspection. His companion told the officer that his identification was in his car. As appellee's companion opened the glove compartment to his car to get his identification, the officer noticed marijuana therein. He then arrested both appellee and his companion. As appellee got into the police car, the officer saw him drop a small quantity of marijuana, which appellee later admitted possessing. The trial judge granted appellee's motion to suppress, finding, among other things, that the automobile belonged to appellee's companion and its contents provided no basis for the arrest of appellee. The trial court judgment was affirmed on appeal, the appellate court holding that there was no probable cause for the police officer to infer possession of the marijuana by appellee. Since the arrest was not based on probable cause, it was an illegal arrest which tainted and poisoned "the rest of the fruits derived subsequent to the unlawful arrest, including the evidence found on him, the confession and the officer's testimony on what he saw or heard during the arrest procedure." Id. at 502. See Spears v. State, D.C.A.Fla. 2, 1974, 302 So.2d 805; Betancourt v. State, supra, Spataro v. State, supra, 179 So.2d at 877.

We are satisfied that the present case is governed by the listed Florida cases. We find in the evidence no reasonable basis for a belief by the state officers that appellant was in either actual or constructive possession of the marijuana. His offense was no more than selecting an unfortunate time to visit his friend. Wynn's possession of the contraband exceeded only slightly (if at all) that of the police officers who accompanied him into the house. A contrary holding would exalt mere presence to a sufficient basis for an arrest for a crime of possession. The Supreme Court has held that presence alone, unilluminated by other facts, is insufficient proof of possession. United States v. Romano, 1965, 382 U.S. 136, 141, 86 S.Ct....