Roberts v. State, s. 85-6

• Decision Date: 07 April 1987
• Docket Number: 85-32,Nos. 85-6,s. 85-6
• Parties: 12 Fla. L. Weekly 955 Karen ROBERTS and Leonard Solie, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 547

505 So.2d 547

12 Fla. L. Weekly 955

Karen ROBERTS and Leonard Solie, Appellants, v. The STATE of Florida, Appellee.

Nos. 85-6, 85-32.

District Court of Appeal of Florida,

Third District.

April 7, 1987.

Rehearing Denied May 4, 1987.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellants.

Robert A. Butterworth, Atty. Gen., and Margarita Muina Febres, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., ^* and DANIEL S. PEARSON and JORGENSON, JJ.

PER CURIAM.

This is a consolidated appeal by two defendants from their respective adjudications and sentences imposed after a jury found them guilty of unlawfully possessing marijuana in violation of Section 893.13(1)(e), Florida Statutes (1983). Although the defendants concede that the evidence shows that they plainly attempted such possession, they contend on appeal, as they did below, that the evidence adduced below fails to establish that they were ever in actual or constructive possession of the subject contraband, and that, accordingly, their convictions should be ordered reduced from the present third-degree felony to a first-degree misdemeanor, to-wit: attempted unlawful possession of marijuana, § 893.13(1)(e), Fla.Stat. (1983). We entirely agree with the defendants because they were arrested before the contraband was released into their actual or constructive possession, thus preventing their convictions for possession under our holding in Garces v. State, 485 So.2d 847 (Fla. 3d DCA 1986).

In this reverse sting operation, the defendants and eight codefendants (Holecek, Dobos, Arias, Rodriguez, St. James, Fiebig, Sipper and Swanson) surfaced as potential buyers for marijuana being offered for sale by undercover police agents posing as drug sellers. Within days of the earliest introductions, four agents--two driving a truckload of between 700 and 1,200 pounds of marijuana--were led by two persons (Holecek and Dobos) to a residence occupied by Roberts and Solie. There, after introductions were made, everyone went inside the house where three additional persons (Arias, Rodriguez and St. James) were present.

Once inside, Roberts began negotiations with one of the agents, informing him that several individual buyers would be involved in the transaction. They eventually agreed that a total of 108 pounds of marijuana would be sold to the buyers by the agents. At Solie's suggestion, the agents moved the truck containing the marijuana, parking it at the rear of the house. Roberts then received a phone call and told one of the agents that certain prospective buyers had driven past the house and were "upset" by having seen "too many cars and too much activity." Solie directed the people in the house to move their cars across the street, and within a few minutes Fiebig and Sipper arrived with a tote bag containing money. A short time later, Swanson, the last of the co-defendants, entered the house.

At Fiebig's request, an agent brought in a sample bale of marijuana weighing approximately twenty-eight pounds. Solie produced a scale, weighed the bale, and then cut the wrapping. After Roberts, Fiebig, Sipper, and Swanson examined the marijuana, Roberts, Fiebig, and Sipper agreed to buy marijuana from the agent and produced money. Significantly, and without dispute, Swanson then took possession of the sample bale, removed it from the scale, put it down next to a wall, and claimed it as his own. According to one of the agents:

"At that point, they said or somebody had mentioned well, Swanson doesn't have money for more than one.... It was understood that would be Mr. Swanson's bale since that would be the right poundage he needed."

Two of the agents, accompanied by an untrusting Solie, went outside to put the money in their car. Solie stayed with the car "to insure that [they] didn't run off with the money" before the marijuana was brought into the house. One agent, accompanied by Fiebig and Sipper, went to the truck and obtained three bales of marijuana. As they were walking towards the house, other officers who were waiting nearby were signaled, and, as the agent entered the house carrying the bale of marijuana, the arrest of all persons therein was announced and effected.

We turn first to Swanson's sample bale. Although it is clear that Solie touched it, the bale was brought into the residence for an inspection of the merchandise by the prospective buyers, and no agreement was finalized until after the inspection was made. However, it is also clear that this bale was not to be part of the purchase negotiated by Roberts, Fiebig and Sipper and was to be Swanson's alone. Under these circumstances, neither Solie's transitory touching of the bale nor the bale's presence in the house is sufficient to demonstrate that either Solie or Roberts possessed it, either actually or constructively. Actual possession is " '[t]he detention and control, or the manual or ideal custody, ... of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it....' " Garces v. State, 485 So.2d at 848 n. 1 (quoting Black's Law Dictionary 1047 (5th ed. 1979)). See Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Willis v. State, ...