Turner v. State

Decision Date26 August 1980
Docket NumberNo. NN-486,NN-486
Citation388 So.2d 254
PartiesCharles D. TURNER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard S. Rhodes, Orlando, for appellant.

Jim Smith, Atty. Gen., and David Gauldin, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Appellant appeals his conviction for possession of more than five grams of cannabis, entered following a non-jury trial. We affirm.

Appellant and a friend were stopped by an agricultural inspector after they drove past an inspection station in a Dodge pick-up truck with an attached camper. The vehicle was returned to the inspection station where, with defendant's consent, the inspector looked inside the rear portion of the truck, opened the lid of a wooden box and found a large duffle bag, which had the odor of marijuana. When appellant was asked whether an examination could be made of the bag, he declined. The inspector called the sheriff who obtained a search warrant based on the inspector's affidavit that he believed the bag contained marijuana. The sheriff searched and found approximately 200 pounds of marijuana in the camper.

Appellant and the state stipulated to a non-jury trial solely on the issue of identification of the marijuana, and appellant reserved his right to appeal denial of his motions to dismiss and to suppress the evidence.

There is no merit to appellant's contention that his motion to dismiss should have been granted because the state's traverse did not comply with Fla.R.Crim.P. 3.190(d). Although the state attorney had apparently not filed a written traverse, he traversed orally at the hearing, and the appellant did not object. Appellant waived objection to the state's traverse. State v. Cramer, 383 So.2d 254 (Fla.2d DCA 1980). Moreover, the oral traverse, stating that appellant had sufficient knowledge and control of the marijuana in the truck based on his statements in the presence of the inspector and the officer, was enough to imply knowledge sufficient to avoid a motion to dismiss. See Cummings v. State, 378 So.2d 879 (Fla.1st DCA 1979).

Additionally, we do not agree appellant was illegally stopped on the ground his vehicle was a "camping trailer", as defined by Section 3 20.01(1)(b), Florida Statutes (1977), and therefore excluded from agricultural inspection under Section 570.15(1)(a)(7), Florida Statutes (1977). The inspector had probable cause to believe the pick-up truck with a camper was a truck. Holec v. State, 376 So.2d 401 (Fla.1st DCA 1979).

As to the sufficiency of the inspector's affidavit that he smelled marijuana to support a search warrant for marijuana, Pederson v. State, 373 So.2d 367 (Fla.1st DCA 1979), is distinguishable. There the search warrant was issued for agricultural products. The court expressly declined to rule on whether "the smell of marijuana was sufficient probable cause supporting the search warrant." Pederson, supra, at n. 1, pp. 368-69. We upheld a search without a warrant under otherwise identical circumstances in Flynn v. State, 374 So.2d 1041 (Fla.1st DCA 1979).

Appellant's final point, that the state failed adequately to identify the substance seized as marijuana, deserves discussion. The state's expert witness, Harriet Pfaffman, a chemist with FDLE, stated she was familiar with botany and taxonomic botanical identification. She was accepted as an expert on the chemical and botanical aspects of identification of cannabis. The decision as to an expert witness's qualifications is one left to the trial court's discretion, reviewable only for abuse. McCormick, Evidence § 13 at 30 (2d ed.1972). See also Fotianos v. State, 329 So.2d 397, 401 (Fla.1st DCA 1976). Her microscopic examination of the substance revealed cystolith and glandular hairs, indicative of cannabis, but which are found also on many other plants. She could not recall whether the cystolith hairs were located on the tops of the leaves as they would be if the substance were cannabis. She then performed a Duquenois-Levine test and determined the substance was marijuana. 1

The defense's expert, Dr. Fullerton, was an associate professor of pharmaceutical chemistry at Oregon State University who held a doctorate in organic chemistry. He has published at least one article in a professional journal on the subject of identification of marijuana in criminal cases. His conclusion, without detailing the scientific and statistical facts he testified to, was that the Duquenois-Levine test was, at best, non-specific for marijuana, and that many other substances, such as coffee, sandlewood and nutmeg, would produce a positive result when exposed to it. Dr. Fullerton stated that microscopic identification with hydrochloric acid, to determine the presence of calcium carbonate, and use of mass or infrared spectrography would positively identify marijuana.

Based on Dr. Fullerton's testimony, appellant argued before the trial judge and here that the state's evidence did not prove beyond a reasonable doubt that the substance seized was marijuana. It is true that language in State v. Vail, 274 N.W.2d 127 (Minn.1979) and State v. Wind, 60 Wis.2d 267, 208 N.W.2d 357 (1973), supports appellant's assertion that the Duquenois-Levine test is not sufficient to prove identity of a substance as marijuana beyond a reasonable doubt. In Vail, supra, the Minnesota Supreme Court affirmed the trial court's decision that the Duquenois-Levine test, along with microscopic identification and thin-layer chromatography, were insufficient proof of the identity of the substance seized, even in conjunction with facts that appellant was attempting to sell 200 pounds of it and was obviously under the impression himself that it was marijuana: "Minnesota's law requires proof of the actual identity of the substance, the defendant's belief is not sufficient." 274 N.W.2d at 134. Moreover, in Vail, the court placed great emphasis on the fact that the trial judge, sitting in place of the jury, had found the evidence of the identity of the substance to be insufficient. The court emphasized that it did not prescribe minimum evidentiary requirements in marijuana identification cases. 274 N.W.2d at 134.

In State v. Wind, ...

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11 cases
  • L.L. v. State
    • United States
    • Court of Appeal of Florida (US)
    • 6 April 2016
    ...that "numerous cases hold that marijuana is not difficult to characterize without chemical analysis") (quoting Turner v. State, 388 So.2d 254, 257 (Fla. 1st DCA 1980) ). Moreover, Officer Munecas did not employ a methodology beyond his ordinary reasoning to arrive at his conclusion. As he e......
  • R.C. v. State
    • United States
    • Court of Appeal of Florida (US)
    • 25 May 2016
    ...a lay witness based on its distinctive odor and other circumstances suggestive of a marijuana smuggling operation); Turner v. State, 388 So.2d 254, 257 (Fla. 1st DCA 1980) (declining to follow a rule requiring scientific proof of the actual identity of a substance as marijuana and approving......
  • A.A. v. State
    • United States
    • Court of Appeal of Florida (US)
    • 4 December 1984
    ...an "expert" in marijuana identification. § 90.702, Fla.Stat. (1983). See Jones v. State, 440 So.2d 570, 574 (Fla.1983); Turner v. State, 388 So.2d 254 (Fla. 1st DCA), dismissed, 394 So.2d 1154 (Fla.1980). The officer's opinion that the substance seized in the present case was marijuana was ......
  • State v. Upton
    • United States
    • Court of Appeal of Florida (US)
    • 28 January 1981
    ...of the traverse. Although the rule undoubtedly requires the traverse to be in writing, this requirement can be waived. Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980). The motion as filed did not require dismissal even in the absence of a Although the foregoing is sufficient basis for ou......
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