JAC v. State, 5D00-3669.
| Decision Date | 31 May 2002 |
| Docket Number | No. 5D00-3669.,5D00-3669. |
| Citation | 816 So.2d 1228 |
| Parties | J.A.C., A Child, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Tammy L. Jaques, Assistant Attorney General, Daytona Beach, for Appellee.
J.A.C. was the passenger in a car stopped by an officer for a traffic infraction. The officer noted the odor of marijuana and that the driver's eyes were glassy and bloodshot. Pursuant to the driver's consent, the officer searched the car. The officer found marijuana residue strewn throughout the car and a bag containing marijuana residue under the driver's seat. In an ash tray on the front passenger's door, next to which J.A.C. had been sitting, the officer found a "small marijuana roach cigar butt." J.A.C. was charged with possession of the marijuana found in the ash tray.
Since J.A.C. was not in actual possession of the marijuana, the state had to prove constructive possession. To do so, the state had to prove that J.A.C. (1) had dominion and control over the contraband, (2) knew the contraband was in his presence and (3) knew of the illicit nature of the contraband. Brown v. State, 428 So.2d 250 (Fla.1983). If the possession is non-exclusive, as it is here, knowledge of the presence of the contraband and the ability to control it cannot be inferred, but must be established by independent proof. Chicone v. State, 684 So.2d 736 (Fla.1996); Brown. Mere proximity to contraband is insufficient. Sierra v. State, 746 So.2d 1250 (Fla. 5th DCA 1999). The presence of marijuana smoke has been deemed insufficient proof of the knowledge element in a group setting. C.M. v. State, 818 So.2d 554 (Fla. 2d DCA 2002) (citing Zandate v. State 779 So.2d 476 (Fla. 2d DCA 2000).)
C.M. is instructive. While initiating a traffic stop, the officer saw what was later determined to be a marijuana cigar tossed from the window of the vehicle. The officer could not tell from which window the cigar was thrown, so none of the three occupants of the vehicle were charged with possession of that marijuana. On approaching the vehicle, the officer noticed a smoky haze in the interior of the vehicle. The occupants were ordered out of the vehicle, and each occupant smelled of marijuana. The officer found a bag of marijuana under the floor mat located beneath the seat where the defendant had been seated. On appeal, the court held that the...
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