Cordero v. State, 91-81

• Decision Date: 14 November 1991
• Docket Number: No. 91-81,91-81
• Citation: 589 So.2d 407
• Parties: Jose L. CORDERO, Appellant, v. STATE of Florida, Appellee. 589 So.2d 407, 16 Fla. L. Week. D2870
• Court: Florida District Court of Appeals

Page 407

589 So.2d 407

Jose L. CORDERO, Appellant, v. STATE of Florida, Appellee.

No. 91-81.

589 So.2d 407, 16 Fla. L. Week. D2870

District Court of Appeal of Florida,

Fifth District.

Nov. 14, 1991.

Jerri A. Blair of Blair & Cooney, Tavares, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a judgment and sentence, appellant having been convicted of trafficking in cocaine and possession of marijuana in an amount of less than twenty grams. We affirm in part and reverse in part, finding that the trial court should have granted appellant's motion for a judgment of acquittal as to the cocaine charge.

Officers Shane Toler and Paul Cutcher of the Leesburg Police Department were on duty and were standing outside of their vehicles at a traffic light on State Road 27 in Leesburg, Florida at about 9:15 p.m. A blue-black Cadillac driven by and owned by Gilberto Valdez pulled up at the traffic light. Officer Cutcher observed water in one taillight and told Officer Toler to stop the car on that basis. The taillights were not inoperative. Although Toler initially thought the tag light was dim, it was not inoperative.

Officer Toler stopped the vehicle, and Officer Cutcher then arrived at the scene. Officer Toler issued a correction card to Gilberto Valdez, and then asked if he could search the vehicle. Valdez signed a Consent to Search Form. Appellant, a passenger in the front passenger seat of Valdez's vehicle, got out of the car when asked to do so. A bag containing cocaine was found underneath the passenger seat between the transmission tunnel and the seat. A bag containing marijuana was found on a console between the passenger and driver's seats.

Appellant first argues that the trial court erred by denying his motion to suppress the cocaine and marijuana seized during the stop. The trial court found the stop to be valid. Neither officer indicated that anything they saw raised a belief of criminal activity. In Kehoe v. State, 521 So.2d 1094 (Fla.1988), the Supreme Court of Florida held that the appropriate analysis in determining whether a traffic stop is valid or pretextual is whether a reasonable officer would have stopped the car absent an additional invalid purpose. The subjective intent of the police officers is not controlling. Officer Cutcher testified he had stopped two cars before where the taillights were burned out due to a similar problem and one car with "water in the taillights" where the taillights were not burned out. Appellant asserts that the stop by Officers Cutcher and Toler is similar to the stop this court held pretextual by us in Monroe v. State, 543 So.2d 298, 299 (Fla. 5th DCA 1989). In that case, we rejected the explanation given by the officers for the traffic stop that one of the car's tires was bald. Appellant argues that the state in the instant case made no showing that "water in the taillight" was a traffic infraction for which "a reasonable officer ... would have made a traffic stop ... absent another invalid purpose." Monroe 543 So.2d at 299. This is an interesting question. We find, however, that appellate review of this question has been waived because defense counsel below not only failed to object but specifically stated that she had no objection to the admission of the contraband. McKelton v. State, 528 So.2d 123 (Fla. 5th DCA 1988); Baglio v. State, 467 So.2d 1030 (Fla. 4th DCA 1985); Bonham v. State, 450 So.2d 269 (Fla. 3d DCA 1984); Gilling v. State, 443 So.2d 1024 (Fla. 5th DCA 1983).

We do agree with appellant, however, that the trial court erred in denying his motion for a judgment of acquittal as to the trafficking in cocaine charge. To establish constructive possession, the state must establish that the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband. Brown v. State, 428 So.2d 250, 252 (Fla.), cert. den., 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), quoting Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). If the premises where the contraband is found is in joint rather than exclusive possession of a defendant, knowledge of the contraband's presence and the ability to control it will not be inferred from the accused's presence but must be established by independent proof. In re E.H., 579 So.2d 364 (Fla. 4th DCA 1991); Brown; Wale; Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967)...