L.L. v. State

• Decision Date: 06 April 2016
• Docket Number: No. 3D14–2410.,3D14–2410.
• Citation: 189 So.3d 252
• Parties: L.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

189 So.3d 252

L.L., a juvenile, Appellant,

v.The STATE of Florida, Appellee.

No. 3D14–2410.

District Court of Appeal of Florida, Third District.

April 6, 2016.

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.

Before SHEPHERD, ROTHENBERG and SCALES, JJ.

SHEPHERD

, J.

This is an appeal from a withheld adjudication and judicial warning for marijuana possession. The issue before us is whether a police officer's identification of marijuana, arrived at by sight and smell alone, is admissible experience-based opinion testimony. Because the officer's opinion was based on his personal knowledge and perception and resulted from a process of everyday reasoning, we hold that the officer's opinion was admissible as lay opinion testimony under Section 90.701, Florida Statutes

.

BACKGROUND

This case is a typical marijuana possession case. L.L., a juvenile, was charged with one count of simple possession of cannabis under Section 893.13(6)(b), Florida Statutes

. At the adjudicatory hearing below, the State relied, in part, on the testimony of Officer Joseph Munecas, who offered his opinion that the substance in question was marijuana. Prior to trial, L.L. requested a Daubert¹ hearing to challenge the admissibility of Officer Munecas's opinion testimony. The judge declined to hold a pre-trial hearing, but agreed to conduct the hearing during the course of the trial.

The prosecutor began by laying the foundation for Officer Munecas's opinion testimony, asking the officer about his field experience and training. The trial judge, apparently adverting to Professor Charles W. Ehrhardt's seminal work on evidence,² stopped the prosecutor from formally tendering the witness as an expert, instructing the prosecutor as follows:

What you want to do is you're permitted to ask an opinion.... And just for trade craft, it's probably wise at that point to turn to the Court and say, Your Honor, I'm about to ask this witness for an opinion which you don't have anything in this case to ask an opinion about yet ... but that way it triggers the other side to see if they want to do any voir dire.

Officer Munecas testified that on January 5, 2014, he was out patrolling when he spotted L.L. crouching down in the driver's seat of a parked vehicle. Officer Munecas approached the vehicle on foot, and observed L.L. reach over and under the passenger seat. The officer testified that when he knocked on the window and L.L. rolled it down, he smelled a "strong odor of marijuana." L.L.'s objection to this testimony as "improper expert opinion" was overruled. When asked what he meant by "a strong odor of marijuana," Officer Munecas explained:

It has a distinct and very unique smell unlike any other. And over the years through my experience I recognize the smell very quick. I mean it's something that it's very unique, and it's very distinct. And when you smell it it's unlike any other smell, and it's very identifiable.

Upon smelling what he believed was marijuana, Officer Munecas asked L.L. if he had any weapons or narcotics in the car. In response, L.L. admitted he had marijuana and handed over a clear plastic bag from the center console.³ The bag, having been properly preserved through the chain of custody, was produced at trial and Officer Munecas, once again over L.L.'s objection, was permitted to offer his opinion that the substance inside was marijuana. Officer Munecas explained his conclusion as follows:

Well the first thing he [L.L.] told me it was when he gave it to me. I asked him if he had any and he gave it to me. Also the smell, you can smell through this bag how strong the marijuana smells. Like I said it's a distinct and a very unique odor unlike any other odor. When you look at it it's a green leafy substance, it has hairs, it has crystals and it's just something that through field experience that over time I've kind of developed a knack for I guess you could say, and like I said I've effected numerous arrests, hundreds of arrests for the substance.

Officer Munecas also searched L.L.'s vehicle and found a rolled cigarette under the front passenger seat. At trial, and again over L.L.'s objection, the officer identified the item as a marijuana cigarette:

Because the way Number 1 that it smelt. It had like I said the distinct and very unique odor. Then also if you look at it on the ends of it it's a green leafy substance which is in it which is consistent with what was inside this bag. So due to the smell, due to the appearance of the green leafy substance of, you know, the hairs on it, the crystals on it, that led me to believe that is a marijuana cigarette.

During cross-examination, counsel for L.L. repeatedly asked Officer Munecas how he was able to identify the substance as marijuana. The officer maintained that his opinion was "just based on my experience and based on my senses." Counsel pressed the officer further, asking whether his experience-based methodology satisfied any of the traditional Daubert factors. For instance, counsel asked whether Officer Munecas used the scientific method, whether he collected any data to formulate his opinion, whether there were any peer reviewed articles determining the reliability of identifying cannabis by sight and smell, or whether he was aware of the false positive rate regarding his method of identifying the substance. Officer Munecas was unable to answer counsel's pointed questions beyond asserting that he had seen and smelled marijuana on numerous occasions in the past and therefore was able to identify it when he saw and smelled it on this occasion. The officer finally conceded: "Sir, I am a police officer, I'm not a scientist."

Although the trial judge expressed doubts as to whether Officer Munecas's "testimony is based upon sufficient facts or data[,] is the product of reliable principles and methods, and whether he has applied the reliable principles and methods in this case[,]" the judge ruled that the testimony was admissible under our prior cases allowing such testimony, which were decided before the adoption of the Daubert standard by the 2013 amendments to the Florida Evidence Code. L.L. appeals, challenging the continued viability of this practice.

ANALYSIS

This case turns on the application of certain sections of Florida's Evidence Code that govern the admissibility of opinion testimony. A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion; however, the trial court's interpretation of the evidence code is reviewed de novo. Almond v. State, 1 So.3d 1274, 1276 (Fla. 1st DCA 2009)

. "Where, as here, a Florida evidentiary rule is patterned after its federal counterpart, ‘federal cases interpreting comparable provisions are persuasive and routinely looked to for interpretive guidance.’ " Bank of N.Y. v. Calloway, 157 So.3d 1064, 1071 n. 3 (Fla. 4th DCA 2015), reh'g denied (Mar. 3, 2015), review denied, 177 So.3d 1263 (Fla.2015) (quoting Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So.3d 329, 334 n. 1 (Fla. 4th DCA) rev. dismissed, 130 So.3d 692 (Fla.2013) ).

Section 90.702: Expert Opinion Testimony

The parties focused primarily on Section 90.702, which sets forth admissibility requirements for expert opinion testimony. In 2013, the Florida Legislature amended Section 90.702 to pattern it after Rule 702 of the Federal Rules of Evidence

. Ch. 2013–107, Laws of Fla. As amended, Section 90.702, Florida Statutes, reads as follows:

90.702 Testimony by experts

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

(amendments in bold). One of the Legislature's stated purposes in amending Section 90.702

was "to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and to no longer apply the standard in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) in the courts of this state." Ch. 2013–107, Laws of Fla. (Preamble to § 90.702 ). The Legislature also intended to prohibit the much criticized⁴ pure opinion exception to the Frye admissibility standard as provided in Marsh v. Valyou, 977 So.2d 543 (Fla.2007)

. Id.

Daubert, Joiner, and Kumho Tire, known as the Daubert trilogy, are the three United States Supreme Court cases that together articulate the Daubert standard. In Daubert, the Court referenced five factors courts could use to determine the reliability of expert scientific testimony: (1) whether the expert's theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique has been generally accepted in the relevant scientific community. 509 U.S. at 593–94, 113 S.Ct. 2786

. In Joiner, the Court held "that abuse of discretion is the proper standard by which to review a district court's decision to admit or exclude scientific evidence." 522 U.S. at 146, 118 S.Ct. 512. And, in Kumho Tire, the Court held the Daubert factors not only apply to scientific knowledge but to technical or other specialized knowledge as well. 526 U.S. at...