Jones v. State

• Decision Date: 19 November 1991
• Docket Number: No. 90-2846,90-2846
• Citation: 589 So.2d 1001
• Parties: 16 Fla. L. Weekly D2917 Avery JONES, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1001

589 So.2d 1001

16 Fla. L. Weekly D2917

Avery JONES, Appellant, v. The STATE of Florida, Appellee.

No. 90-2846.

District Court of Appeal of Florida Third District.

Nov. 19, 1991.

Rehearing Denied Jan. 3, 1992.

Bennett H. Brummer, Public Defender, and Louis Campbell, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Avi Litwin, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.

SCHWARTZ, Chief Judge.

On the basis of an infinitesimal "residue" of cocaine on a small piece of metal ribbon, commonly used in smoking the drug, which was found in his jacket pocket, Jones was convicted of possession of cocaine and of narcotics paraphernalia. The defendant does not challenge the latter conviction. He does, however, contend that the cocaine, which was visible on the screen and detectable both by a field test and subsequently in the laboratory, but which was, in the technician's words, not "realistically weighable," was, as a matter of law, of insufficient quantity to justify a possession charge. We do not agree.

It is fully established in the Florida cases that "the quantity [of drugs] possessed is immaterial." State v. Eckroth, 238 So.2d 75, 77 (Fla.1970); see State v. Thornton, 327 So.2d 227 (Fla.1976); Jefferson v. State, 549 So.2d 222 (Fla. 1st DCA 1989); see also Evans v. State, 543 So.2d 326 (Fla. 3d DCA 1989). This is the inevitable result under the statute which, of course, makes no qualification as to the amount of controlled substance required. Sec. 893.13(1)(f), Fla.Stat. (1989). To insert, as the appellant suggests, a requirement that the quantity be somehow "usable" for sale or consumption, ¹ e.g., People v. Leal, 64 Cal.2d 504, 413 P.2d 665, 50 Cal.Rptr. 777 (1966), would require a degree of expertise which we do not possess, and, more important, an act of judicial statutory amendment in which we may not indulge. See Florida Real Estate Comm'n v. McGregor, 268 So.2d 529, 531 (Fla.1972).

It is true that the ordinary presumption that one has knowledge of drugs found in his possession, State v. Medlin, 273 So.2d 394 (Fla.1973), may not apply when there are only trace amounts of drug "lint" or "dust" which, we are told, now adhere to almost everything in South Florida. See United States v. One Gates Learjet, Serial No. 28004, 861 F.2d 868 (5th Cir.1988); State v. Dempsey, 22 Ohio St.2d 219, 259 N.E.2d 745 (1970). This claim is wholly irrelevant to this case, however, in which the cocaine was found on an implement which is usable only for the obviously knowing use of the drug. See Evans, 543 So.2d at 327 (minuscule amounts of cocaine found in smoking pipe). We are content to adopt the language, if not the holding of People v. Aquilar, 223 Cal.App.2d 119, 35 Cal.Rptr. 516 (1963), cited by appellant:

As forensic science, measuring devices and techniques improve, smaller and smaller amounts of residue are required for the chemist to detect the presence of the narcotic. The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.

Aquilar, 223 Cal.App.2d at 123, 35 Cal.Rptr. at 519 (emphasis supplied). The facts of this case obviously fall within this standard.

Affirmed.

NESBITT, J., concurs.

FERGUSON, Judge (dissenting).

I concur in the conviction and one-year sentence for possession of narcotics paraphernalia because neither is challenged in this appeal. I respectfully dissent, however, from the affirmance of the conviction and sentence for possession of cocaine. Aside from my view that the majority opinion is inaccurate on the facts and the law, there are other practical considerations which militate against the sentence.

There is a severe shortage of space in Florida's prisons, and a budget crisis rules out the likelihood of a short-term increase in the construction of new prisons as a solution. To meet the crisis, many violent offenders are being released from state prisons to make room for new nonviolent offenders, having served, in many instances, less than twenty percent of the court-imposed sentence. In this case the Department of Corrections recommended that the defendant be sentenced to two years of community control with a condition that he participate in a drug rehabilitation program. In light of the high cost to house a prisoner, ¹ the critical shortage of prison space, and the Department of Correction's recommendation for nonprison time, the three and one-half year prison term for the nonviolent possession of an unrecognizable and unusable residue of cocaine is incomprehensible. ²

Chief Judge Schwartz's effort for the majority, usually unassailable, is legally flawed in its attempt to reconcile the accurate observation that trace amounts of cocaine may be found, innocently, on "almost everything in South Florida," with this case, where there is criminal liability for the possession of a trace amount of cocaine even though the substance is found on an instrument which has an ordinary use other than for the consumption of cocaine. Indeed, in the second paragraph of the majority opinion it is held:

[T]he statute ... makes no qualification as to the amount of controlled substance required. Sec. 893.13(1)(f), Fla.Stat. (1989). To insert ... a requirement that the quantity be somehow "usable" for sale or consumption, ... would require a degree of expertise which we do not possess, and, more important, an act of judicial statutory amendment in which we may not indulge.

Nevertheless, in the following paragraph the majority recognizes an apparently contradictory, and quite apposite, principle of law that "the ordinary presumption that one knowingly possesses drugs in his possession ... may not apply when there are only trace amounts" of the illegal substance.

If the statement in the indented paragraph above were a strict rule of law, any person in possession of currency, a drinking straw, razor blade, pipe, hypodermic needle, or any common object also used for ingesting cocaine, which was tainted with a trace amount of cocaine, would be guilty of a felony possession of cocaine. To avoid the unconscionable reaches of this rule, the majority then does what it says it may not do, that is, indulge in an act of judicial statutory amendment. The majority does so by holding that one does not violate section 893.13(1)(f) in possessing a trace amount of cocaine where the trace amount is found on an implement, unless the implement is one which is used only for drugs.

For the purpose of understanding what is and what is not at issue in this case, two different hypothetical scenarios are given:

1) An object in the possession of a suspect is one which ordinarily serves no purpose other than to consume illegal drugs, and is found to contain trace amounts of cocaine without any other evidence that the possessor ever used the instrument to administer or consume the illegal substance.

2) An object in the possession of a suspect is a nondescript item which may have an ordinary and legitimate use but is found, under a microscopic or scientific examination, to contain trace amounts of cocaine or cocaine residue, without any evidence that the possessor has used, or intends to use, the object to administer an illegal drug.

Assuming, as the majority does, that this case falls within the first scenario, the conviction for possessing drug paraphernalia would stand. There is a question, however, whether a conviction for possession of the trace amount of cocaine could stand unless there is other evidence that the cocaine, separate from the paraphernalia, was substantially and consciously held. The possession of an instrument containing trace amounts of an illegal substance may indicate an intent to use drugs in the future. As one writer notes, treating the discovery of traces as the basis for a paraphernalia prosecution is more consistent with the purpose of the drug law than charging the defendant with possession of a residue which admittedly presents no risk of future...