CM v. State, 2D00-3265.

• Decision Date: 25 January 2002
• Docket Number: No. 2D00-3265.,2D00-3265.
• Citation: 818 So.2d 554
• Parties: C.M., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

818 So.2d 554

C.M., a child, Appellant, v. STATE of Florida, Appellee.

No. 2D00-3265.

District Court of Appeal of Florida, Second District.

January 25, 2002.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

C.M. challenges a delinquency adjudication for possession of marijuana. We reverse because the State failed to produce sufficient evidence of constructive possession.

On December 6, 1999, Officer William Jordan of the Tampa Police Department was on patrol, traveling southbound on North Armenia Avenue. He was behind an Oldsmobile sedan, and when the driver of the Oldsmobile failed to stop at a stop sign, Officer Jordan activated his lights in order to initiate a traffic stop. Before the Oldsmobile came to a complete stop, Officer Jordan saw something "fly" from a passenger-side window. Officer Jordan could not tell whether the object came from the front or rear passenger-side window. Another officer subsequently retrieved a marijuana cigar¹ believed to be the object thrown from the window, but none of the occupants of the car were charged with possession of the marijuana cigar because, in Officer Jordan's words, they "weren't able to decide who it belonged to."

When he approached the vehicle, Officer Jordan noted a smokey haze inside the car, accompanied by the strong scent of marijuana. C.M. was a passenger in the front seat, and there was another passenger seated in the rear. All three occupants were ordered out of the car and each smelled of marijuana. Upon searching the car, Officer Jordan found a baggie which contained what he believed to be marijuana concealed beneath the floor mat where C.M. had been sitting. Officer Jordan performed a field test on the contents, and the results confirmed his suspicion. C.M. denied knowing that the baggie was beneath the floor mat but admitted smoking a tobacco cigarette while the other two occupants passed marijuana back and forth. C.M.'s motions to dismiss the delinquency petition were denied by the trial court, and he was adjudicated delinquent for possession of marijuana and ordered to complete a level 4 program.

In order to carry its burden of proof in this constructive possession case, the State must have produced evidence to establish that C.M. knew of the presence of the marijuana, knew of its illicit nature, and had the ability to exercise control over it. K.L. v. State, 787 So.2d 236 (Fla. 2d DCA 2001). The State maintains that C.M.'s knowledge of the contraband can be inferred from circumstantial evidence which established that Officer Jordan observed a marijuana cigar being thrown from a passenger window, that the car was filled with marijuana smoke, and that all three boys smelled of burnt marijuana when they stepped out of the car. We conclude that this circumstantial evidence was insufficient to establish that C.M. knew of the marijuana beneath the floor mat.

In Skelton v. State, 609 So.2d 716, 717 (Fla. 2d DCA 1992), this court held that when contraband is found in a space occupied by two or more persons, the State must "prove either that the accused had actual knowledge of the presence of the contraband or present incriminating statements and circumstances from which a trier of fact...