Editor's note: If you have any interest in the application of the Fourth Amendment, read the court's opinions in Bennett and Jimoh. Both came from the same panel of the court.
In BENNETT v. STATE, No. 2D09-940 (Fla. 2d DCA Nov. 5, 2010), the Defendant was convicted of trafficking in cocaine, possession of marijuana, and possession of paraphernalia, all based on circumstantial evidence that he was in constructive possession of the contraband. The Defendant was wanted on felony charges, although no arrest warrant had been issued. A police officer received a tip that the Defendant could be found at a certain residential address. The officer went to the address and, through a window, saw the Defendant inside. The officer announced his presence and his intention to arrest the Defendant. The Defendant refused the officer's order to come out, whereupon the officer entered through the window and made the arrest. The officer asked for and received the Defendant's permission to search the premises. The search revealed contraband in the residence.
The Defendant was not shown to have physically possessed the contraband. Thus, to convict, it was necessary for the State to prove that he had it in his constructive possession. The district court explained that to prove constructive possession, the State must show beyond a reasonable doubt that the Defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it. The jury could reasonably conclude that the Defendant knew of some of the contraband because it was in plain view. But that in itself did not suffice to prove that he had dominion and control over the contraband. To satisfy that element of the State's proof, the surrounding circumstances must support the inference of a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession. Mere proximity to contraband is not enough.
The fact that contraband was in the Defendant's plain view did not support an inference that the Defendant had control over it unless the Defendant had control over the premises. Here, the evidence failed to show that the Defendant had control over the premises. The evidence proved at most that the Defendant was a visitor. The Defendant made no incriminating statements, and no eyewitness testimony or scientific evidence such as fingerprints linked him to the contraband. The DCA concluded that the State failed to prove the Defendant was in constructive possession of the contraband found in plain view in the residence.
Although moot, the court also commented that the officer's warrantless entry into the residence was pursuant to a "felony pick-up order" for the Defendant's arrest on outstanding drug charges. The officer explained that a pick-up order is signed by a police supervisor based on a criminal report affidavit and then taken to dispatch where it is entered into a database. He explained that a warrant, on the other hand, is based on a charging document, is signed by a judge, and is thereafter entered into the computer system. The court held that the pick-up order authorized a warrantless arrest pursuant to § 901.15(2) Florida Statutes (2007), which authorizes an officer to make a warrantless arrest when "[a] felony has been committed and [the officer] reasonably believes that the person committed it". However that statute was not a proper basis for the officer's entry into the dwelling. While there are exceptions to the warrant requirement, such as consent, exigent circumstances, and hot pursuit, the State relied solely on the statute to give effect to the pick-up order. However the statute must be applied within the constitutional framework set forth by the Supreme Court. In Payton v. New York, 445 U.S. 573, 588-89 (1980), the Supreme Court held that it is unlawful to effect a routine felony arrest in a private residence absent exigent circumstances unless a warrant is obtained: "To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present."
In STATE v. SHUKITIS, No. 2D09-1651 (Fla. 2d DCA Nov. 5, 2010), the Defendant was charged with obtaining drugs from a physician by withholding evidence, possession and trafficking. The State appealed a trial court order suppressing records obtained from pharmacies and physicians. Officers obtained, without subpoenas or search warrants, the Defendant's patient profiles from two pharmacies. From those profiles, law enforcement learned that the Defendant had been seeing two local doctors, each of whom worked out of a different clinic. Officers contacted the doctors, who provided them with "information regarding the defendant's medical treatment, such as his lists of medication and... the fact that the defendant allegedly had a medical appointment" at one of the clinics on a certain day. This information was also obtained without the use of a subpoena or a search warrant. An officer followed the Defendant from the clinic to a pharmacy, where the Defendant filled a prescription. The Defendant moved to suppress, arguing that the medical information obtained from the pharmacies and the doctors and the drugs found on him and his subsequent confession should be excluded because the evidence was obtained without subpoenas or search warrants.
The DCA held that § 893.07(4) Florida Statutes (2008) allows for controlled substance records to be obtained from pharmacies by "law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances" without a search warrant, a subpoena, or patient consent. Therefore the trial court erred by suppressing that information. The trial court also erred by applying the wrong statute when suppressing the physician's records. Therefore the DCA remanded the case with instructions to deny the motion to suppress as to the pharmacy records and to reconsider the suppression of the physician information applying § 456.057(7)(a) Florida Statutes, and to make specific findings as to which portions of the physician information amounted to reports and records relating to the examination and treatment of the Defendant consistent with that statute.
In ACOSTA v. STATE, No. 2D09-2725 (Fla. 2d DCA Nov. 5, 2010), the Defendant moved to correct an illegal sentence pursuant to Fla. R. Crim. P. 3.800(a). The trial court granted his motion, finding that a mandatory minimum provision of his sentence was improper because the trial court failed to orally pronounce the mandatory minimum portion of his sentence at the original sentencing. The trial court then resentenced the Defendant without the mandatory minimum requirement. However, the trial court did so without conducting a hearing where the Defendant would have an opportunity to be present with counsel. The DCA reversed and remanded because a defendant has a right to be present and to be represented by counsel at any resentencing proceeding from a rule 3.800(a) motion except when it concerns issues that are purely ministerial in nature. Where resentencing is within the trial court's discretion, the resentencing is not purely ministerial, and a defendant is entitled to be present at the hearing.
In JIMOH v. STATE, No. 2D09-3979 (Fla. 2d DCA Nov. 5, 2010), an officer observed the Defendant sitting in the driver's seat of her car with the engine running in the parking lot of a convenience store. The officer testified that the Defendant appeared to be asleep or looking down at her telephone. After inquiring and discovering that the Defendant had been parked there for approximately ten to fifteen minutes, the officer called for back-up and an experienced DUI investigator responded. The driver's side window was open about four inches and the second officer could smell alcohol coming from the vehicle. Both officers attempted to wake the Defendant by banging on the car roof and doors. When she did not respond, the second officer reached into the vehicle, shut off the engine, opened the door, and shook the Defendant until she woke up. He then had the Defendant get out of the car and proceeded to conduct a DUI investigation that led to the Defendant's arrest.
The DCA distinguished Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999), and held that based on the observations of the Defendant, including her unresponsiveness and the smell of alcohol, the totality of the circumstances provided the officer with a reasonable suspicion that the Defendant may have been impaired when the investigatory stop occurred, and therefore the investigatory stop was justified.
In STATE v. HALL, No. 2D09-5599 (Fla. 2d DCA Nov. 5, 2010), the Defendant entered a no contest plea to grand theft in exchange for sentences of forty-eight months imprisonment, a downward departure from the minimum permissible sentence of 66.1 months imprisonment with a maximum possible sentence of ten years imprisonment. The downward departure was based on "early acceptance of responsibility and the fact that she's scoring greater than the statutory maximum". The State appealed the downward departure.
The DCA held that although it was true that the Defendant's lowest permissible sentence exceeded the statutory maximum sentence, imposing a sentence below the minimum permissible sentence because the minimum permissible sentence exceeds the statutory maximum sentence conflicts with the mandate of § 921.0024(2) Florida Statutes (2008). Although early acceptance of responsibility can be a basis for reduction of a sentence under the federal sentencing guidelines, the DCA "question[ed] whether the concepts of acceptance of responsibility or early acceptance of responsibility set forth in the federal sentencing guidelines provide a valid basis for departure under Florida's sentencing scheme. Those concepts have arguably been taken into account under the Code. And in certain respects, they may conflict with the stated goals of the Code".
Slip opinion at 5-6. In addition the DCA observed that the Defendant "offered" to enter into a plea if the circuit court would impose a forty-eight-month sentence. The circuit court noted that defense counsel insisted that without such a reduction there would be a trial. The circuit court decided to impose a downward departure sentence before the Defendant pleaded, and thus her incentive to enter a plea was the negotiated reduction of her sentence, not her acceptance of responsibility. In addition, the Defendant did not plead guilty after being assured of her departure sentence but, instead, pleaded no contest. By pleading no contest, the Defendant expressly declined to acknowledge her guilt and only agreed not to contest the evidence. In addition, other than her entry of a plea after the circuit court had agreed to impose a departure sentence, there was no evidence of the Defendant's acceptance of responsibility for her offenses.
