Nast v. State, 75-655
| Decision Date | 11 June 1976 |
| Docket Number | No. 75-655,75-655 |
| Citation | 333 So.2d 103 |
| Parties | John E. NAST, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
We have for review a case involving incriminating statements obtained as a result of a warrantless arrest, the legality of which is at issue.
Following the lower court's denial of the appellant's motion to suppress his statements, the appellant withdrew his plea of not guilty and entered a plea of nolo contendere to possession of more than five grams of marijuana reserving his right to appeal the order denying his motion, as permitted by State v. Ashby, Fla.1975, 245 So.2d 225. The factual basis on which the lower court accepted his nolo plea was provided solely by the incriminating statements. We reverse.
At two o'clock in the afternoon of November 11, 1974, Officer Britts of the Clearwater Police Department observed two young men, one of whom was the appellant, seated on a public bench, apparently talking to one another. Alongside the bench he saw what appeared to be a bundle of clothing, so he decided to find out where the two young men were staying. As he approached them in his patrol car he observed the appellant's companion walk to the seawall and perform a throwing motion. The appellant remained seated at the bench. Britts left his cruiser, walked over to the seawall and observed a plastic baggie containing what appeared to be marijuana. He directed the appellant's companion to retrieve the baggie, examined the contents, and determined that the substance was in fact marijuana; whereupon, he arrested both young men, searched them, and took them into custody. No contraband was found on the person of the appellant. The two were advised of their constitutional rights at the scene and again at the police station. Approximately half an hour later, while in custody, the appellant made incriminating statements to the effect that he and his companion were holding the marijuana for a friend, and that they were preparing to smoke some of it when they saw Britts approaching.
Appellant contends that his arrest was unlawful because Officer Britts lacked probable cause to believe that the appellant had either actual or constructive possession of the contraband. We agree.
In the case at bar it is evident from the record that Officer Britts had no indication that the appellant had ever had actual possession of the marijuana found at the scene. Therefore his decision to arrest the appellant had to be based on the reasonable belief that the appellant had constructive possession.
Constructive possession has been defined as the ability to reduce to actual possession and...
To continue reading
Request your trial
-
State v. Rodriguez
... ... Our research has revealed some cases in other jurisdictions involving the issue of "mere presence" in public places. In Nast ... v. State, 333 So.2d 103 (Fla.1976), the court held that a police officer lacked probable cause to arrest the defendant for possession of ... ...
-
U.S. v. Wynn
...not have actual personal dominion." Spataro v. State, D.C.A.Fla. 2, 1965, 179 So.2d 873, 877. 5 In the recent case of Nast v. Florida, D.C.A.Fla. 2, 1976, 333 So.2d 103, Nast was sitting on a public bench with a friend when a police officer approached. Appellant's companion took a package h......
-
Edwards v. State
... ... Compare State v. James 7 and In the Interest of P.L.R. 8 to Williams v. State 9 and Nast v. State. 10 ... Without probable cause to arrest appellant, the search of his pants pocket at the police station was presumptively ... ...
-
Thompson v. State
...See, e. g., Britton v. State, 336 So.2d 663 (Fla. 1st DCA 1976); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Nast v. State, 333 So.2d 103 (Fla. 2d DCA 1976); Tanksley v. State, 332 So.2d 76 (Fla. 2d DCA 1976); Moore v. State, 325 So.2d 466 (Fla. 4th DCA 1976); Willis v. State, 320 S......