Please permit me break off a piece of wisdom to anyone driving around Central Florida with drugs in their car: try not to drive like a jerk. That’s right. I’ve defended a zillion drug cases in Orlando that start from a simple traffic citation. Why blow thru a stop sign with a trunk load full of drugs? Why partake of a drag race from every stoplight when you’ve got several hundred illegal oxycodone’s in your pocket? As Timothy B. Schmit likes to sing, “I can’t tell you why”.
The real life example of “idiot driving=drug charge” comes to us via the case of Williams v. State, 110 So. 3d 59 (Fla. 2d DCA 2013). Ms. Williams was speeding on the highway, and driving recklessly, so the Tampa police pulled her over. The car was a rental, and Ms. Williams had two passengers with her. When the police approached the car Ms. Williams became extremely nervous, so much so the police offered her an EMT. Then, the officers smelled marijuana coming from the car (oh, that’s why you’re so nervous). In case you didn’t know, the odor of marijuana gives the police probable cause to search just about anyone, anything, anywhere. Here’s the three most common odor claims of police:
1. Odor of “burnt” cannabis. To me, smelling something that’s already burnt is simply evidence of a completed crime–not a crime that’s still being committed. Much like a person under the age of 21 with alcohol on their breath, the odor of burnt cannabis just tells you that the dirty deed is done. So, if you’re smelling an already committed crime, why search for “evidence” that has probably been transformed to the legal substance of carbon ashes? Unfortunately, most judges do not agree with me here, and as such, the odor of burnt cannabis gives officers probable cause to search just about anyone, anything, anywhere. Body cavities? Sure, you could hide weed up there. Really, does this happen? Yes. Really, does this happen in America? Yes.
2. Odor of “fresh marijuana”. Ah, the smell of fresh bud in the morning. Many of you hippies out there can distinguish between the odor of fresh bud, and the odor of burnt marijuana. Now, if you apply logic, it makes more sense that when an officer smells “fresh” cannabis, this smell would be the best excuse to search everything, because it shows that the criminal substance should be somewhere close. It is evidence of a continuing crime of possession of cannabis. Smelling fresh weed gives law enforcement 100% carte blanche to search everyone, everywhere.
3. Odor of marijuana, nondenominational. This is the most generic odor claim of law enforcement. I think that if you can’t tell the difference between the smell of fresh bud and burnt, you have no business conducting body cavity searches to find drugs. But that’s not how the courts see it, and even officers that only claim a generic odor of marijuana, to which they cannot tell whether or not it’s fresh or burnt, judges will still uphold a search of just about anything, anywhere. Unfortunate.
Back to Ms. Williams case. As you might have guessed, the police searched Ms. Williams’ rental car and found lots of personal papers, plus, inside a black bag they found a pound of fresh marijuana, and a few pieces of crack cocaine in smaller baggies. But wait, if you order now, we’ll throw in a few digital scales. And just like that, Ms. Williams’ speeding and reckless driving turned into a possession of cannabis with intent to sell or deliver, possession of cocaine with intent to sell, and possession of drug paraphernalia. Because prosecutors and judges don’t always understand constructive possession, they like to waste taxpayer money taking such cases to trial. After all, the government has Ms. Williams smelling marijuana (so she knows its somewhere in the car), driving a car she rented in her name, with papers inside the car with her name on them–what more could you want? Well, as we’ve said before, there must be INDEPENDENT EVIDENCE that links Ms. Williams to the crime. The court noted that “no attempt was made to lift fingerprints from the black bag or any item from inside the bag…there was nothing on or in the black bag that tied it or the items inside it to her or anyone else.” Id at 61.
This is Constructive Possession 101. You learn this stuff on your first day of class. Mere proximity to drugs–even proximity to the smell of those drugs–cannot ever prove dominion and control over them. The basic legal concept here is simply stated by the court “when a defendant is not in exclusive possession of the vehicle where the contraband is found, the elements of knowledge and dominion and control may not be inferred or assumed but must be established through additional and independent proof.” Id. E.A.M. v. State, 684 So. 2d 283, 284 (Fla. 2d DCA 1996) The Williams court goes on to say that “therefore, the State’s burden was to prove two elements: (A) that Ms. Williams knew of the presence of the contraband and (B) that she had the ability to exercise dominion and control over it. It is the latter element for which we find the State’s evidence lacking”. Id. [internal citations omitted]
It is “(A) Knowledge” that blinds and distracts prosecutors everywhere. Hey, your client knew the weed was there. Hey, your client could see the drugs right there. Hey, your client was closest to the drugs. Hey, your client could smell that weed, she knew it was there. Yea Yea Yea. So what. In most constructive possession cases, I’ll give you “(A) Knowledge” all day long, because you can’t prove (B) dominion and control. Can’t be done. Happens almost every time, and almost every time dominion and control is ignored. This ignorance leads to more taxpayer dollars being wasted, but what’s new?
So, as you might have guessed, the court threw out Ms. Williams’ convictions. You may also appreciate the court’s footnote, in which they state “were we to accept the State’s arguments here–that merely by being the driver and renter of the car Ms. Williams had dominion and control over whatever closed containers were placed in the car with her and her passengers–it would be tantamount to turning such constructive possession into “strict liability” on the part of the driver, which we are not prepared to do.” Id at 65, footnote 6.