Brown v. State, 79-459
| Decision Date | 14 April 1982 |
| Docket Number | No. 79-459,79-459 |
| Parties | James Frederick BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Saylor of Saylor, Ingalsbe & Cohen, North Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a conviction for possession of marijuana in excess of five grams in violation of Section 893.13(1)(e), Florida Statutes (1977). The appellant was charged with possession of marijuana in excess of five grams, possession of hashish, and possession of PCP. The jury acquitted the appellant of the latter two charges.
The appellant raises numerous points on appeal, only one of which merits discussion; that is, the sufficiency of the evidence as to constructive possession.
During the evening hours of April 26, 1978, law enforcement officers executed a search warrant at a residence owned by the appellant. The residence had been under surveillance for approximately one year. During that period of time, the appellant had been observed entering and leaving the house on a number of occasions. When the warrant was served, the appellant opened the door and was seated by the officers in the living room. There were two persons living in the house with the appellant, and they were present when the warrant was executed. Marijuana was found in the following places: (a) five grams in an ash tray on the coffee table in the living room, (b) 54 grams in a plastic cup in the door panel inside the refrigerator, (c) 826 grams in a locked beer dispenser in the kitchen, (d) some amount in a coffee cup in the cabinet above the beer dispenser, (e) several bags of seeds in the garage, (f) a container of seeds in the kitchen cabinet, and (g) a bottle of seeds on the bar in the family room. A search also disclosed the following narcotic paraphernalia: (a) a glass mirror, (b) a strainer, (c) a razor, (d) plastic bags and cigarette papers on the kitchen counter, (e) surgical clips on the coffee table in the living room, (f) pipes and containers in the garage, (g) spoons, papers, mirrors, and plastic funnels in the bar in the family room, (h) a bottle of manitol (a cutting agent) in the garage, (i) six pipes, hashish, and 150 milligrams of PCP on the bar shelves in the family room, (j) hashish in a car belonging to one of the residents parked outside the home, and (k) other drugs found in one resident's bedroom. At issue is whether the State presented a prima facie case of constructive possession based on these facts.
In order to convict an accused of constructive possession, the State must prove that he had dominion and control over the contraband, had knowledge that the contraband was within his presence, and had knowledge of the illicit nature of the contraband. Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976). If the area in which a contraband substance is found is within the exclusive possession of the accused, his knowledge of its presence, and his ability to maintain control over it, may be inferred. If the area is only in his joint possession, his knowledge of the presence of the contraband on the premises and his ability to maintain control over it will not be inferred but must be established by other proof. This proof may consist of circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband and an ability to control it. Wale v. State, supra.
We believe that the facts brought out at trial were sufficient to create a jury question as to the appellant's constructive possession of the marijuana. This is not a situation where three people shared an apartment as co-tenants or roommates with equal rights in that apartment. Here the appellant owned and lived in the house and had superior possessory rights. He received mail there, paid the household bills, and was residing there immediately prior to the events in question. The marijuana and narcotic paraphernalia were in plain view. Given that the appellant lived in his own home literally in the midst of all the seized drugs and paraphernalia, a jury could reasonably infer, as it did in this case, that the appellant had dominion and control over the premises and its contents. See United States v. Davis, 562 F.2d 681 (D.C.Cir.1977); United States v. Herron, 567 F.2d 510 (D.C.Cir.1977).
Notwithstanding our conclusion that the evidence was sufficient to sustain appellant's conviction we recognize that the case law in this area is far from clear. This issue is further addressed in Judge Rivkind's dissent and Judge Anstead's special concurrence. Because this has been a recurrent problem which has proven troublesome to trial courts and appellate courts alike we hereby certify the following questions to the Supreme Court as being of great public importance:
1. DOES OWNERSHIP AND JOINT OCCUPANCY OF A PREMISES WHERE ILLEGAL DRUGS ARE DISCOVERED IN PLAIN VIEW, IN THE PRESENCE OF THE OWNER, CONSTITUTE SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR CONSTRUCTIVE POSSESSION AS TO THE OWNER OR AS TO A LESSEE UNDER THE SAME CIRCUMSTANCES?
2. WHERE TWO OR MORE PERSONS JOINTLY OCCUPY PREMISES AND ILLEGAL DRUGS ARE DISCOVERED IN PLAIN VIEW, IN THEIR PRESENCE, IS SUCH PROOF, WITHOUT MORE, SUFFICIENT TO SUPPORT A CONVICTION FOR CONSTRUCTIVE POSSESSION AS TO EACH PERSON?
The judgment and sentence of the trial court are hereby affirmed.
ANSTEAD, J., concurs specially, with opinion.
I concur in Judge Beranek's opinion and agree that the questions certified are of great public importance. The concept of constructive possession has proven to be a difficult concept to define and, once defined, even more difficult to apply to facts similar to those present herein. In essence, at issue is whether an owner and co-tenant may, simply by reason of his knowledge of the presence of a controlled substance on the premises, be deemed to be in possession of such substance. As Judge Rivkind notes, there are numerous Florida appellate decisions which appear to hold that evidence similar to that produced herein is insufficient to establish constructive possession. There are, of course, also as noted by Judge Rivkind, cases which reach a contrary result.
On the other hand, when one considers the definition of constructive possession contained in the standard jury instructions and given to the jury here, it is easier to understand how the jury could find the evidence sufficient:
Possession may be actual or constructive. If a thing is in the hand, or on the person, or in a bag or container in the hand or on the person, or is so close as to be within ready reach and is under the control of the person, it is in the actual possession of that person.
If a thing be in a place over which the person has control and knowledge of its presence, or in which the person has hidden or concealed it, it is in the constructive possession of that person.
Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In such case, each of such persons is legally in possession of that article.
This instruction permits conviction based upon evidence of knowledge and control over the place where the contraband is located, in this case a residence, as opposed to evidence of control over the contraband itself. The instruction further provides for joint possession thereby clearing the way for joint occupants of a residence to be subject to conviction for constructive possession where there is evidence that they had knowledge of the presence of the contraband. However, as noted by Judge Rivkind, there are numerous cases which appear to hold that in cases of joint possession there must not only be evidence of knowledge, there must also be independent evidence of control of the contraband itself. If this analysis is correct, it would appear that the cited case law and the instruction are in conflict.
Underlying all of this is the question of how far the legislature intended to go in restricting a person's contact with illegal drugs. Was the legislative net intended to catch persons who simply had joint control over premises in which they knew that others possessed contraband? Or did the legislature intend that only those who had some legal possessory interest in the contraband, or intent to possess, were to be held criminally responsible? The case law cited by Judge Rivkind would appear to suggest the latter while the standard jury instruction would suggest the former. In simply prohibiting actual or constructive possession the legislature has given us little guidance on this issue. Ordinarily, however, in order for a person to be guilty of criminal conduct he must have intended to do the act which has been made unlawful, here possession of illicit drugs. That being so it would appear that the state should be required to prove that the defendant intended to possess the contraband contrary to the provisions of the law. No such requirement is contained in the standard jury instruction and there is little discussion of this matter in the case law. Perhaps that is what is meant by ability to "control." In any case we are all in agreement that the law is far from clear on this issue and a resolution by the Supreme Court will be welcomed.
The facts are fully detailed in Judge Beranek's opinion. While the reported cases involving constructive possession of narcotics have not been a model of consistency, on the whole, nevertheless, similar evidence as exists sub judice has resulted in numerous reversals of convictions. 1 The cases are rare in which a constructive possession conviction survives an appeal. 2
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