Falin v. State

• Decision Date: 06 February 1979
• Docket Number: No. 77-1737,77-1737
• Court: Florida District Court of Appeals
• Parties: Roy Allen FALIN, Appellant, v. The STATE of Florida, Appellee.

Page 675

367 So.2d 675

Roy Allen FALIN, Appellant, v. The STATE of Florida, Appellee.

No. 77-1737.

District Court of Appeal of Florida, Third District.

Feb. 6, 1979.

Rehearing Denied March 9, 1979.

Fine, Jacobson, Block, Goldberg & Semet, Theodore Klein, Miami, for appellant.

Jim Smith, Atty. Gen., and Anthony C. Musto and Paul Mendelson, Asst. Attys. Gen., for appellee.

Before PEARSON, KEHOE and SCHWARTZ, JJ.

SCHWARTZ, Judge.

The appellant was the co-defendant of Betty Jean Winchell, whose convictions for possession of various items of contraband we considered in Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978). On this appeal, Falin primarily contends that the circumstantial evidence against him was insufficient to support his convictions for the same offenses of which Ms. Winchell had also been found guilty: possession of marijuana, cocaine, methaqualone and a narcotic implement. We agree with this contention and reverse the judgment below.

The facts of the case were accurately summarized in the Winchell opinion at 362 So.2d 993-994:

". . . Roy A. Falin, was stopped by the police in North Bay Village for the purpose of inquiring as to his presence in the area and to obtain some identification. As a result of this inquiry, Falin was arrested for not having a valid driver's license. Falin seeking to establish his identity, advised the officer that he was staying with a girl friend (appellant) in room 112 at a Holiday Inn located in North Bay Village. After taking Falin to the police station, a police officer and his sergeant went to the motel to verify the information given by Falin. After checking with the desk clerk, the officers found that the room was registered to Falin, but noted for occupancy by two persons. The officers then proceeded to the room and knocked on the door. Appellant opened the door and, in plain view, the officers saw, among other things, several bags of marijuana, a scale, a pipe, and a box of sandwich bags. After making this observation from outside the room, the officers then entered the room, seized the marijuana and pipe, and arrested appellant for possession of a controlled substance. While appellant was sitting down in the room, the officers observed a firearm in an open suitcase at her feet. The pistol was seized and turned out to be a BB gun which was a replica of a German Luger. In seizing the pistol, two more bags of marijuana in the suitcase were seized. Also, a bag containing cocaine, which was wrapped inside a brown paper bag was seized. During this time, no other search was made. Instead, the room was then sealed by the officers and a search warrant was obtained from the circuit court to search the room. The search conducted pursuant to the warrant revealed additional contraband, including one tablet of methaqualone found in a corner of the room lying on the rug and a bag of cocaine found secreted inside the back of a radio . . ."

Of prime significance in the consideration of this case is the fact that, unlike Winchell who was in the hotel room when the contraband in question was seized, Falin was in a police station miles away. There was no direct proof whatever as to when he had last been in the room, or whether the drugs and implements had even been present at the same time that he was, much less whether he knew about or had the ability to control them.

While, as we held in Winchell, at 362 So.2d 995, it was demonstrated that Falin was in joint possession of the room where all the contraband was found, there is plainly insufficient evidence of his knowledge and constructive possession of any of the items...