District Court of Appeal of Florida,
Second District.
Milton DE LA CRUZ, Appellant,
v.
STATE of Florida, Appellee.
No. 2D03-4050.
Sept. 10, 2004.
Background: Defendant was convicted in the Circuit Court, Sarasota County,
Thomas M. Gallen, Senior Judge, of cocaine trafficking and other offenses. He
appealed.
Holding: The District Court of Appeal, Northcutt, J., held that evidence was
insufficient to show that defendant had constructive possession of cocaine, as
required for conviction for cocaine trafficking based on cocaine found in
house that was not in defendant's exclusive possession.
Reversed.
Covington, J., dissented and filed opinion.
[1] Controlled Substances k82
96Hk82 Most Cited Cases
Evidence was insufficient to show that defendant had constructive possession
of cocaine, as required for conviction for cocaine trafficking based on
cocaine found in house that was not in defendant's exclusive possession, even
though detective testified that he could smell cocaine as he approached
kitchen cabinet where cocaine was found; cocaine was not within plain view,
given that it was partly concealed in cabinet by ordinary kitchen provisions
and that it looked like bar of soap, defendant was not found in kitchen, no
evidence showed that cocaine smell permeated other areas of house, and none of
defendant's personal effects were found near cocaine. West's F.S.A. <section>
893.135(1)(b)1.
[2] Controlled Substances k30
96Hk30 Most Cited Cases
If the place where drugs are found is not in the accused's exclusive
possession, knowledge of the presence of and control over the drugs cannot be
inferred; the state must provide independent proof of these elements.
[3] Searches and Seizures k49
349k49 Most Cited Cases
When closer examination of an item observed in plain view is necessary to
confirm its incriminating nature, its nature is not considered immediately
apparent, thus rendering plain-view exception to warrant requirement
inapplicable. U.S.C.A. Const.Amend. 4.
James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public
Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck
Horbelt, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
*1 A jury found Milton De La Cruz guilty of trafficking in cocaine,
possession of cocaine, and possession of paraphernalia. He challenges only the
trafficking conviction, claiming that the State's evidence did not prove he
possessed a sufficient amount of cocaine to support that charge. We agree and
reverse.
De La Cruz's charges came as a result of law enforcement's attempt to
apprehend David Gonzalez on an outstanding felony warrant. Gonzalez's
distinctive Ford truck was seen parked outside De La Cruz's residence in
Sarasota County. Law enforcement officers from the Florida Department of Law
Enforcement and the Sarasota Sheriff's Office converged in the area, and two
Sheriff's deputies approached the home. As they knocked on the door, one of
the deputies looked through a window and saw De La Cruz on a sofa in the
living room. De La Cruz opened the door and allowed the deputies to come
inside. Upon entering, the deputies heard a noise coming from the back of the
house. They discovered Gonzalez in a bedroom.
At this point, De La Cruz signed a consent to search the home. He said he was
the primary renter, although two other people were on the lease. He had lived
there approximately five months and was in control of the residence. The other
law enforcement officers in the area joined in the search. Several officers
testified that De La Cruz appeared to have cocaine residue on his face and on
his shirt. A white powdery substance and a rolled-up twenty dollar bill were
in plain view on a table in the living room. A plastic baggie containing 2.95
grams of cocaine was found between the cushions on the couch where De La Cruz
had been sitting. The officers also discovered a white envelope in a bedroom
with residue they suspected was cocaine. Additionally, they discovered money,
a digital scale, and a pipe inside a cabinet.
In the garage, law enforcement found a small hydraulic press used to form
cocaine into blocks. They also found a suitcase that contained a picture of
Gonzalez's brother and clothing that appeared to fit Gonzalez.
One detective searched the kitchen. A cabinet door was open six to eight
inches and he noticed what appeared to be a block of soap, encased in plastic
wrap, located behind some flour and pasta. He testified that when he moved
closer to the cabinet, "[t]he first thing I smelled was a strong smell, which
is common with cocaine. It definitely didn't smell like a bar of soap." He
moved the other contents of the cabinet aside and "again it looked to be like
a bar of soap that was wrapped up, and that struck me as funny. So that
coupled with the smell, I decided I would look at the object and I would pull
it out." When he began to unwrap the package, he "had a real good idea because
of the smell that it wasn't a bar of soap, and the consistency of it" was such
that he thought it was "probably cocaine." The contents turned out to be
165.36 grams of cocaine, pressed into a block that fit the dimensions of the
hydraulic press discovered in the garage.
*2 [1] As a result of this discovery in the kitchen, the State charged De La
Cruz with trafficking based on his actual or constructive possession of more
than 28 grams but less than 200 grams of cocaine. See <section>
893.135(1)(b)(1), Fla. Stat. (2002). De La Cruz maintains the evidence was
insufficient to show he actually or constructively possessed the block of
cocaine. We agree.
Because De La Cruz was not in actual possession of the block, the State was
required to prove he constructively possessed it. In order to do so, the State
had to establish that De La Cruz knew the cocaine was in his presence. [FN1]
See Brown v. State, 428 So.2d 250, 252 (Fla.1983); Loyd v. State, 677 So.2d
76, 77 (Fla. 2d DCA 1996).
[2] When the police arrived, the residence was not in De La Cruz's exclusive
possession. Gonzalez was inside the home, and officers found personal property
that appeared to belong to Gonzalez in the garage. If the place where drugs
are found is not in the accused's exclusive possession, knowledge of the
presence of and control over the drugs cannot be inferred. The State must
provide independent proof of these elements. Loyd, 677 So.2d at 77; Green v.
State, 667 So.2d 208, 211 (Fla. 2d DCA 1995).
[3] The State argues that the block of cocaine was in plain view and that
this fact is sufficient to establish De La Cruz's knowledge and control. See,
e.g., Brown, 428 So.2d at 252. We disagree with the State's premise that the
cocaine was in plain view. The block was inside a kitchen cabinet, partly
concealed by ordinary kitchen provisions. The officer testified it looked like
a bar of soap "all wrapped up" in plastic. No evidence established the
contraband was visible through these layers of plastic. In fact, the officer
testified that, even after moving the other cabinet contents aside, the
package "still looked like a bar of soap." As such, the State presented no
evidence that the contraband was in plain view. See Chappell v. State, 457
So.2d 1133, 1134-35 (Fla. 1st DCA 1984) (holding that drugs in manilla
envelope were not in plain view for purposes of a constructive possession
analysis); see also Bradshaw v. State, 509 So.2d 1306, 1309 (Fla. 1st DCA
1987) (determining that drug paraphernalia contained in a nontransparent
bottle was not in plain view in a constructive possession case). [FN2]
The detective also testified that he could smell the cocaine as he approached
the kitchen cabinet. We note that De La Cruz was not in the kitchen and no
evidence established that the smell permeated other areas of the home.
Furthermore, the detective candidly admitted that he only thought the object
was cocaine based on the smell and the fact that it did not smell like soap.
Even as he removed the layers of plastic, he only suspected the item was
"probably cocaine." These facts do not establish De La Cruz's knowledge of the
presence of the cocaine under any sort of "plain smell" theory.
The State offered no other evidence to connect De La Cruz to the cocaine in
the kitchen. The police did not obtain fingerprints from the wrapping, De La
Cruz never admitted the block was his, and none of his personal effects were
found near the contraband. See Loyd, 677 So.2d at 77-78. The evidence that the
block fit the cocaine press seemed to implicate Gonzalez more than De La
Cruz--the press was found in the garage, near a suitcase that contained items
connected to Gonzalez.
*3 De La Cruz does not dispute that the State proved he possessed the cocaine
found in the living room. But his knowledge of that contraband does not prove
he knew about the cocaine in the kitchen. See Hill v. State, 873 So.2d 491,
493 (Fla. 1st DCA 2004).
The trial court should have granted De La Cruz's motion for judgment of
acquittal on the trafficking charge. Accordingly, we reverse the conviction
for trafficking. We remand to the circuit court to enter a judgment of
acquittal on that charge and to resentence De La Cruz on the remaining
convictions for possession of cocaine and possession of paraphernalia.
Reversed.
SALCINES, J., Concurs.
COVINGTON, J., Dissents with opinion.
COVINGTON, Judge, Dissenting.
I respectfully dissent. In my opinion, there was sufficient evidence
presented at trial to support De La Cruz's conviction for trafficking in
cocaine. As the majority points out, the State was required to prove
constructive possession since the contraband was not found in De La Cruz's
actual possession. Because De La Cruz was not in exclusive possession of the
residence,
his knowledge of the presence of the contraband on the premises and his
ability to maintain control over it will not be inferred but must be
established by other proof. This proof may consist of circumstantial evidence
from which a jury might properly infer that the accused had knowledge of the
presence of the contraband and an ability to control it.
Brown v. State, 412 So.2d 420, 422 (Fla. 4th DCA 1982), aff'd, 428 So.2d 250
(Fla.1983).
Here, the evidence presented to the jury established that De La Cruz was the
individual who gave police permission to enter the residence, and he was the
individual who signed the consent to search form. Significantly, De La Cruz
told police that he was in control of the residence, that he had been living
there and renting, and that he was the primary renter for five or six months.
Although De La Cruz had not signed the lease, he was listed as one of the
tenants on the rental agreement.
Testimony revealed that a woman named Lilliana Cabrolis had signed the lease
and that the other tenants would be Sandra Perez and De La Cruz. However, no
women's clothing was found in the residence when it was searched. Even though
the residence had three bedrooms, De La Cruz's room was the only bedroom in
the home that had furniture in it. While the majority concludes that the
evidence seems to implicate David Gonzalez more than De La Cruz, De La Cruz
conceded to police officers that Gonzalez did not live in the residence. These
facts are distinguishable from those in Hill, 873 So.2d 491, in which the
defendant apparently did not live in the apartment where police found the
drugs but was spending the night.
Hill is also distinguishable in that the large caches of cocaine found in
Hill were hidden in the voids under dresser drawers. In contrast here, the
block of cocaine was found in an open kitchen cabinet. Detective Beal
testified that the block drew his attention and that the first thing he
noticed when he got closer to it was a strong smell, which is common for
cocaine.
*4 The facts in People v. Miller, 33 Cal.App.3d 191, 195, 108 Cal.Rptr. 788
(1973), are analogous to the facts here. The officer in Miller observed
paper-wrapped kilo-shaped blocks or bricks in an open box and smelled a strong
odor of marijuana. Id. The Miller court held that where police officers see a
package with a unique shape common for drugs and notice a "notoriously
distinctive and identifiable odor," it can be deemed to be in plain view.
Id.; see also Nelson v. State, 867 So.2d 534, 537 (Fla. 5th DCA 2004)
(holding, "Just as evidence in the plain view of officers may be searched
without a warrant, evidence in the plain smell may be detected without a
warrant."); Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 747 N.E.2d 1253,
1259 (2001) (stating what an officer "sees, smells or hears" are "plain-view
observations").
I cannot say the trial court erred in concluding from these facts that De La
Cruz had the ability to control the contraband. Thus, I would affirm the
decision of the trial court.
FN1. Section 893.101(2), Florida Statutes (2002), was enacted on May
13, 2002, before the date of De La Cruz's offense. It states that
"knowledge of the illicit nature of a controlled substance" is not an
element of offenses charged under chapter 893. That statute does not
affect our analysis, which is grounded on the fact that the State failed
to prove De La Cruz knew of the presence of the cocaine.
FN2. The dissent relies on several cases discussing "plain view" in the
context of a search and seizure analysis. See People v. Miller, 33
Cal.App.3d 191, 108 Cal.Rptr. 788 (1973); Nelson v. State, 867 So.2d 534
(Fla. 5th DCA 2004); Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638,
747 N.E.2d 1253 (2001). We think that Chappell, 457 So.2d at 1134- 35,
and Bradshaw, 509 So.2d at 1309, which specifically address a "plain
view" analysis in a constructive possession case, support our holding
that the block of cocaine was not in De La Cruz's "plain view" for
establishing that he knew of its presence. But even aside from that,
under Florida law, we doubt that the testimony of the detective would
support a finding that the cocaine was in his plain view for purposes of
search and seizure. As our supreme court has held, a law enforcement
officer may seize items in plain view if "the incriminating character of
the evidence is immediately apparent" to the officer. Pagan v. State,
830 So.2d 792, 808 (Fla.2002). Here, the detective only thought the
package might contain cocaine, and even after he removed the object from
the cabinet and began to unwrap it, still only suspected it was
"probably cocaine." "[W]hen closer examination of an item observed in
plain view is necessary to confirm its incriminating nature, its nature
is not considered 'immediately apparent.' " Minter-Smith v. State, 864
So.2d 1141, 1144 (Fla. 1st DCA 2003).
2004 WL 2008266 (Fla.App. 2 Dist.), 29 Fla. L. Weekly D2044
END OF DOCUMENT
Date/Time of Request: Wednesday, November 10, 2004 21:45:00
Central
Citation Text: 2004 WL 2008266
Documents: 1
Images: 0
