J.J. v. State
| Decision Date | 18 March 2020 |
| Docket Number | No. 3D18-0398,3D18-0398 |
| Parties | J.J., a juvenile, Appellant, v. The State of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County, Richard Hersch and Maria De Jesus Santovenia, Judges.
Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Robert Kalter and Deborah Prager, Assistant Public Defenders, for appellant.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
Before EMAS, C.J., and SALTER and LOGUE, JJ.
J.J., a sixteen-year-old juvenile, was prosecuted for marijuana possession discovered during a search incident to his arrest. He has appealed the denial of his motion to suppress on two grounds. Finding one of those grounds dispositive—the absence of probable cause particularized to the juvenile as a basis for the arrest, as J.J. was not in actual or constructive possession of cocaine found on a stove in the kitchen where he sat—we reverse his adjudication for possession of cannabis and remand with a direction to suppress the evidence seized from his person at any further adjudicatory hearing.
The warrantless search in this case was contended to be a lawful search-incident-to-arrest, and the state contended that the probable cause for the arrest was established by J.J.'s close proximity to the cocaine on the kitchen stovetop. Officer testimony and video captured by the officer's body camera show: J.J. was one of three persons in the kitchen as the officer entered (and among those individuals, J.J. was closest to the stove); the others in the kitchen were adults; J.J. was seated in a rocking chair that did not face the stove; he was not touching the stove; and J.J. was looking at his cellphone and holding it with both hands when the officer entered.1
The officer testified that on the stovetop, he could see a fork, a scale, and a glass beaker, each with a white substance on them. The officer suspected the white substance was crack cocaine, and arrested J.J. for possession of cocaine. He did not direct any questions to J.J. individually prior to taking him into custody and placing him under arrest. The officer conducted a search incident to arrest and found baggies of marijuana in J.J.'s pocket.
The state presented no evidence that J.J. was touching or had touched the cocaine, stovetop, or paraphernalia found on the stovetop. Nor did the state present any evidence that J.J. lived at the premises. Indeed, there was no evidence at all regarding J.J.'s status as an owner, tenant, or visitor of the residence, or whether this juvenile was with a parent or guardian. There were six to eight people in the residence, but J.J. was the only juvenile there. Two other people were in the kitchen with J.J. However, because J.J. was the closest in proximity to the stovetop, the officer arrested J.J. for possession of the cocaine and paraphernalia on the stovetop.
The officer searched J.J. incident to that arrest, finding marijuana in J.J.'s pocket. J.J. filed a motion to suppress the seized marijuana. The trial court denied the motion, and the case proceeded to hearing. The trial court found J.J. delinquent on the charge of possession of cannabis and adjudicated J.J. This appeal followed.
Our consideration of the trial court's suppression ruling is subject to a mixed standard of review:
We review the trial court's grant of a motion to suppress using a mixed standard of review; the appellate court defers to the trial court's findings regarding the facts and applies the de novo standard of review to legal conclusions. SeeRiggs v. State, 918 So. 2d 274, 278 (Fla. 2005) (); Hidelgo v. State, 25 So. 3d 95 (Fla. 3d DCA 2009).
State v. Delgado, 92 So. 3d 314, 316 (Fla. 3d DCA 2012). An additional consideration in this case, however, is the officer's bodycam video footage in the record. Our deference to the trial court's superior vantage point regarding credibility findings and the live testimony of witnesses is not fully applicable to our consideration of the video. See Parker v. State, 873 So. 2d 270, 279 (Fla. 2004).
The record before us, and the video in particular, establish that J.J. was in neither actual nor constructive possession of the contraband alleged to justify his arrest. The state concedes that the juvenile was not in actual possession of the cocaine or other paraphernalia. Thus, the question is whether J.J. constructively possessed the cocaine and paraphernalia, such that the officer had probable cause to arrest J.J. "To establish constructive possession, the state must prove that the defendant '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.'" E.A.M. v. State, 684 So. 2d 283, 284 (Fla. 2d DCA 1996) (quoting Skelton v. State, 609 So. 2d 716, 716-17 (Fla. 2d DCA 1992)); O.L.M. v. State, 767 So. 2d 617, 618-19 (Fla. 3d DCA 2000) (). In the instant case, the cocaine and paraphernalia were in open view. There is no dispute over J.J.'s knowledge that the contraband was in his presence. Nor is there any dispute over whether J.J. knew the illicit nature of the substance. The issue is whether there was probable cause, under a theory of constructive possession, that J.J. had "dominion and control" over the contraband.
The standard jury instruction on possession of a controlled substance is also illustrative on this point:
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another.
Fla. Std. Jury Instr. (Crim.) 25.7 (emphasis added).
The state contends that because J.J. was the individual closest to the contraband, he exercised dominion and control over it, providing probable cause for the officer to arrest J.J. This is incorrect.
As our sister court observed in Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007):
Knowledge of the presence of the drugs and the ability to exercise dominion and control over the drugs are not the same thing. SeeJean v. State, 638 So. 2d 995, 996 (Fla. 4th DCA 1994) (). In the case law, the concepts of "dominion" and "control" involve more than the mere ability of the defendant to reach out and touch the item of contraband. Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs.
(Emphasis added).
This is consistent with this Court's own precedent:
To establish constructive possession, the state must show that the accused had dominion and control over the contraband, knew of the presence of the contraband, and was aware of the illicit nature of the contraband. Kuhn v. State, 439 So. 2d 291 (Fla. 3d DCA 1983); Brown [v. State, 428 So. 2d 250, 252 (Fla. 1983)]. However, if the contraband is found on premises which are under joint rather than exclusive possession of a defendant, "knowledge of the contraband's presence and the ability to control it will not be inferred, but must be established by independent proof." Winchell v. State, 362 So. 2d 992 (Fla. 3d DCA 1978), cert. denied, 370 So. 2d 462 (Fla.1979); Brown, 428 So. 2d at 252. Mere proximity to contraband, without more, is legally insufficient to prove possession.Bass v. United States, 326 F.2d 884(8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964); Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984).
Torres v. State, 520 So. 2d 78, 80 (Fla. 3d DCA 1988) (emphasis added). See also Thompson v. State, 172 So. 3d 527, 530 (Fla. 3d DCA 2015) () (quoting Johnson v. State, 456 So. 2d 923, 924 (Fla. 3d DCA 1984)).
This concept of constructive possession and the mere proximity doctrine applies whether in the context of a trial (under a reasonable doubt standard) or a motion to suppress evidence seized in a search incident to arrest (under a probable cause standard). The instant case required the state to present evidence—beyond mere proximity—to support a finding of probable cause to arrest J.J. Simply put, the state failed to do so. While the facts in this case may have provided the officer with founded suspicion to question J.J., the facts in this case did not provide probable cause to arrest J.J. J.J.'s mere proximity to the cocaine and paraphernalia was insufficient to establish his dominion and control over them, and therefore the officer was without probable cause to arrest J.J. As we held in a similar circumstance in Harper v. State, 532 So. 2d 1091, 1094 (Fla. 3d DCA 1988):
In this case, the founded or reasonable suspicion constitutionally required to support the Terry stop we have identified is readily apparent....
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