Davis v. State
| Citation | 350 So.2d 834 |
| Decision Date | 19 October 1977 |
| Docket Number | No. 77-25,77-25 |
| Parties | Austin L. DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard D. Mars, Lakeland, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of possession of more than five grams of marijuana in violation of Section 893.13, Florida Statutes (1975). In this appeal, he raises three points worthy of discussion.
The testimony at the suppression hearing showed that at 1:45 a. m. a confidential informant told the police that an automobile with marijuana in it was parked at the Eastgate Liquor Lounge in Lakeland. The informant had provided reliable information in the past. The informant stated that he had seen the marijuana in the trunk a short time before. He described the make, year, and license number of the automobile. At 1:55 a. m. two police officers found the automobile at the lounge and placed it under surveillance. At 2:20 a. m. appellant and a female companion came out of the lounge and drove off in the automobile which was under observation. The police stopped the automobile at 2:30 a. m. and found marijuana in the trunk.
In view of the previous reliability of the informant, the fact that he had recently seen the marijuana in the automobile, and the corroborating circumstances observed by the officers, we believe the police had probable cause to search the vehicle. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The exigent circumstances obviated the need for a search warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Therefore, the motion to suppress was properly denied.
At the trial both arresting officers gave essentially the same testimony. After telling why they had the car under surveillance and caused it to be stopped, they related what happened at the scene. As soon as the car was stopped, the officers asked the appellant to open the trunk. He acted very nervous. The appellant asked the officers if they had a search warrant and when he was told they did not, he asked his companion to contact his attorney. He also told the officers that he did not have the key to the trunk. The officers informed the appellant that while they did not have a search warrant, they did have probable cause to believe that he was transporting contraband. They had the appellant empty his pockets and found the key to the trunk. Upon opening the trunk, the officers observed a large amount of marijuana.
The appellant contends that his motion for a directed verdict of acquittal should have been granted. He contends that in attempting to show that he had constructive possession of the marijuana, the state failed to prove that he had knowledge of its presence.
There is no doubt that knowledge is a necessary element of constructive possession. Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965). However, knowledge may be shown by either direct or circumstantial evidence. Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975); Frank v. State, supra. We believe the facts that appellant had possession of the trunk key and attempted to conceal it were sufficiently incriminating circumstances from which the jury could infer that he knew marijuana was in the trunk and that it was in his constructive possession.
During redirect examination of one of the arresting officers, the following dialogue occurred in the presence of the jury:
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