J.S.M. v. State, 2D05-3282.

• Decision Date: 08 December 2006
• Docket Number: No. 2D05-3282.,2D05-3282.
• Citation: 944 So.2d 1143
• Parties: J.S.M., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

944 So.2d 1143

J.S.M., Appellant, v. STATE of Florida, Appellee.

No. 2D05-3282.

District Court of Appeal of Florida, Second District.

December 8, 2006.

William D. Sites, Tampa, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

After receiving a report from a confidential source that a drug party was under way at a Tampa hotel, several Hillsborough County sheriff's deputies discovered J.S.M. and three other people at 3:30 a.m. in a room redolent of burnt marijuana. At least three bags of marijuana were in plain view, and J.S.M. was ultimately charged with misdemeanor possession of cannabis. After a combined hearing on his motion to suppress and his delinquency petition, the juvenile court judge denied suppression, found J.S.M. guilty of the offense, withheld adjudication of delinquency, and placed him on one year of probation. On appeal, J.S.M. contends that the State's evidence was legally insufficient to prove his constructive possession of the drugs. We agree and reverse.

In a constructive possession case, the State must prove "(1) the accused's dominion and control over the contraband; (2) the accused's knowledge that the contraband is within his or her presence; and (3) the accused's knowledge of the illicit nature of the contraband." S.B. v. State, 657 So.2d 1252, 1253 (Fla. 2d DCA 1995). No issue has been raised regarding J.S.M.'s knowledge that the contraband was in his presence — it was in plain view — or his knowledge of its illicit nature, which he admitted.

Here, however, the State utterly failed to prove that J.S.M. had dominion and control over the contraband. Because there was no evidence that J.S.M. was an occupant of the room rather than a guest, the court could not infer that he had the ability to control the contraband simply because it was in plain view. Compare Taylor v. State, 319 So.2d 114, 115 (Fla. 2d DCA 1975) (holding that circumstantial evidence of guilt emanating from the defendant's proximity to illicit drugs in plain view was equally susceptible to the reasonable hypothesis that the defendant was a mere visitor and that the drugs were in the possession and control of the owner or other occupant of the premises), with Brown v. State, 428 So.2d 250, 252 (Fla. 1983) (holding that proof of the discovery of illegal drugs in plain view in the presence of two or more joint occupants of the premises is sufficient to support a conviction for constructive possession). In a case such as this, the State must establish the element of control by independent proof. Wade v. State, 558 So.2d 107, 108 (Fla. 1st DCA 1990) (citing Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981)); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

The evidence in this case raises a strong inference that J.S.M. just happened to be in the hotel room when the deputies arrived searching for a person named Jason. None of the information that the deputies had gleaned from the confidential informant's tip related to J.S.M. Although one of the deputies stated that J.S.M. was "staying" in the room, his comment was unsupported by any evidence and is too conclusory to establish that J.S.M. actually occupied the premises.

The facts of this case bear a strong resemblance to those in Wade, 558 So.2d at 108, in which the First...