State v. Brider

• Decision Date: 18 July 1980
• Docket Number: No. 79-2335,79-2335
• Citation: 386 So.2d 818
• Parties: STATE of Florida, Appellant, v. David Lance BRIDER, Appellee.
• Court: Florida District Court of Appeals

Page 818

386 So.2d 818

STATE of Florida, Appellant, v. David Lance BRIDER, Appellee.

No. 79-2335.

District Court of Appeal of Florida, Second District.

July 18, 1980.

Rehearing Denied Aug. 21, 1980.

Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.

Raymond O. Gross of Gross & Doherty, P. A., Clearwater, for appellee.

GRIMES, Judge.

The state appeals from an order dismissing an information which charged appellee with possession of in excess of five grams of cannabis with intent to sell or deliver.

In granting the motion to dismiss, the court considered the following pertinent facts. The Pinellas County Sheriff's Department had obtained possession of a quantity of marijuana in a prior case. Through contacts with a confidential informant, the department reached agreement with a Mr. Hamilton for Hamilton to pay a certain price for the marijuana. Hamilton in turn contacted appellee and offered to sell him the marijuana. Appellee accepted the offer on behalf of two other individuals from whom he obtained $13,750, of which he gave $13,000 to Hamilton.

After Hamilton received the $13,000, he left appellee's company to obtain the marijuana and returned some time later in a station wagon accompanied by an undercover officer from the sheriff's department. The marijuana, which was sealed in plastic bags, was in the rear of the vehicle. Appellee got into the station wagon and directed Hamilton to drive to a secluded location where he and the officer each unloaded one of the bags. At this point, the two individuals to whom appellee had promised to deliver the marijuana arrived. Simultaneously, the officer, with the help of others who had converged on the scene, arrested appellee and Hamilton.

The premise upon which the court dismissed the information was that appellee never had possession of the marijuana. The record does not support this conclusion. Possession is defined as having personal charge or exercising the right of ownership, management or control over the article in question. To constitute possession, there need not be an actual handling of the article nor is it necessary that it be otherwise actually upon the person of the accused. There must only be a conscious and substantial possession by the accused as distinguished from a mere involuntary or superficial possession. State v. Eckroth, 238 So.2d 75 (Fla.1970). Here, a jury could reasonably conclude that appellee had possession of the marijuana because he exercised control if not ownership of it by directing where it should be delivered and by helping to unload it at the appointed location. The fact that the undercover officer never intended to let appellee exercise ultimate control of the marijuana to the extent of removing it from the scene did not make appellee any less the possessor. The same argument could be made with respect to any controlled transaction with undercover police officers.

The more difficult question is whether these facts constituted entrapment as a matter of law. Ordinarily, entrapment is a jury question. State v. Liptak, 277 So.2d 19 (Fla.1973). Nevertheless, the Florida courts have recognized that entrapment can exist as a matter of law. Smith v. State, 320 So.2d 420 (Fla. 2d DCA 1975); Spencer v. State, 263 So.2d 282 (Fla. 1st DCA 1972). Appellee's argument for entrapment in the trial court and here is that the state supplied him with the very contraband which it charged him with illegally possessing. If he is right, we would be obliged to affirm the order of dismissal even if the court did enter it for the wrong reason.

Appellee cites several cases for the proposition that entrapment exists as a matter of law where the government supplies the contraband with which the accused is later charged with illegally handling. E. g., United States v. Bueno, 447 F.2d 903 (5th Cir. 1971); Messelt v. State, 351 So.2d 630 (Ala.Cr.App.1977); State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972); People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765 (1961). In the Strong case, which other courts have often cited, the Supreme Court of Illinois reversed a conviction of selling, dispensing and possessing heroin and said:

(T)he undisputed testimony of defendant strongly tends to prove that defendant was supplied with the narcotics by Reynolds, the government employee. While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the sin qua non of the offense.

172 N.E.2d at 768.

Likewise, in United States v. Bueno the court of appeals held that entrapment was shown as a matter of law when an informer furnished narcotics to the defendant for sale to a government agent. The court reasoned that the defendant would not have had the heroin to sell had it not been furnished to him by the informer.

In neither of the cases discussed above did the courts suggest that the defendant had no predisposition to commit the crime, which is the circumstance ordinarily essential to the defense of entrapment. See State v. Dickinson, 370 So.2d 762 (Fla.1979). The judge in United States v. Mahoney, 355 F.Supp. 418 (E.D.La.1973), addressed the anomaly by pointing out that despite their references to entrapment the courts which dismiss charges under these circumstances generally do so on a theory of governmental misconduct.

If the foregoing authorities represented current law, the governmental involvement in the case at hand would suggest that appellee's argument has merit. However, recent developments indicate that we should proceed cautiously. The Illinois Supreme Court has now revisited People v. Strong. In reversing a holding of entrapment as a matter of law, the court in People v. Cross, 77 Ill.2d 396, 33 Ill.Dec. 285, 396 N.E.2d 812 (1979), said:

In our reconsideration of the subject and in light of the ever-growing drug problem, we are not so sure that the court should be so critical, as it was in Strong, of governmental action in infiltrating drug rings, and we do not believe that the courts should foreclose the possibility that a conviction of a predisposed individual could be sustained even though the government did furnish the controlled substance. The offense in question here is the unlawful delivery of a controlled substance and, although the government may have supplied the substance, the critical inquiry is whether the "criminal purpose" of selling these substances originated with the defendants (Ill.Rev.Stat.1975, ch. 38, par. 7-12). By supplying an individual with controlled substances, the government is merely facilitating or providing the opportunity for the individual to make an unlawful delivery. This is not entrapment under our entrapment statute (Ill.Rev.Stat.1975,...