Johnson v. State, 83-1549

• Decision Date: 04 September 1984
• Docket Number: No. 83-1549,83-1549
• Citation: 456 So.2d 923
• Parties: Westley JOHNSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 923

456 So.2d 923

Westley JOHNSON, Appellant, v. The STATE of Florida, Appellee.

No. 83-1549.

District Court of Appeal of Florida,

Third District.

Sept. 4, 1984.

Rehearing Denied Oct. 22, 1984.

Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven Kolodny, Asst. Atty. Gen., for appellee.

Before FERGUSON and JORGENSON, JJ., and NORRIS, WILLIAM A., Jr., Associate Judge.

FERGUSON, Judge.

Defendant brings this appeal from the denial of his motion for judgment of acquittal and subsequent conviction and sentence for trafficking in heroin.

At trial several witnesses offered different and somewhat conflicting versions of the events leading up to defendant's arrest. The evidence viewed in a light most favorable to the State, see Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965), shows the following: The police received a call from defendant's girlfriend, Ms. Fowler, which had nothing to do with drug activity. In response to that call, two officers met Ms. Fowler at an apartment building in Overtown and she directed them to another apartment building. According to Officer Dehay, when they arrived at the apartment house, Ms. Fowler walked up to a particular door as if she knew it. ¹ Defendant was inside the apartment and opened the door. He then went back into the apartment. The officers exited their vehicle, knocked on the door, and were permitted entry into the apartment. Officer Russell discovered in plain view a gray metal box containing white powder (stipulated by both counsels to be heroin) and several syringes. Defendant insisted, and it is not disputed, that he lived in a different apartment complex with Ms. Fowler and their daughter. ²

The defendant in this case was not in actual physical possession of the contraband, therefore, the State had the burden of proving constructive possession. Three elements are necessary to establish constructive possession: (1) the defendant's ability to exercise dominion and control over the contraband; (2) his knowledge of the presence of the contraband; and (3) his awareness of the illicit nature of the contraband. Brown v. State, 428 So.2d 250 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Kuhn v. State, 439 So.2d 291 (Fla. 3d DCA 1983). The defendant here challenges the State's proof of the element of control, claiming that the evidence showed only that defendant was found in close proximity to the contraband discovered in the apartment.

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). In many instances, however, the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found. For this reason, the cases have sharply distinguished between the culpability of a mere visitor from that of an owner or an occupant of premises containing illicit drugs in plain view. Compare Brown (ownership and/or joint occupancy of premises is sufficient to support a conviction for constructive possession as to each person where drugs are discovered in plain view in their presence) with Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975) (defendant's proximity to marijuana in plain view was merely circumstantial evidence insufficient to support conviction for constructive possession where defendant did not own or live on the premises and did not have control or joint control of the premises or the drugs).

In United States v. Holland, 445 F.2d 701 (D.C.Cir.1971), police officers entered a woman's apartment and found the woman and the defendant undressed in the bedroom. Narcotics were discovered in plain view...