Kuhn v. StateKuhn v. State
The stipulated facts disclose that at approximately 1:30 a.m. police officers Harrelson and Pinder observed three pick-up trucks enter State Road # 5 from a private driveway. As they followed the trucks they heard a voice on the citizens’ band radio remark: “Slow down to 45. We have company.” The officers then heard: “When they go under a street light, see if they have anything on the roof. If they see where we came out, were in trouble.” A short time later two of the pick-up trucks stopped at the Howard Johnson‘s Motor Inn in Key Largo. The officers, now accompanied by Detectives Owen and Hessman, proceeded to the Howard Johnson‘s parking lot where Detective Owen saw defendant Kirkland walking in the parking lot. When Kirkland ran into the adjacent wooded area, Owen chased and caught him and then placed him under arrest. A “luggage bag” containing Kirkland‘s identification was found in the cab of a pick-up truck. In the back of the pick-up truck were “various bales of marijuana.” Kirkland was not the registered owner of the truck and no evidence established that he had been in the truck.
Approximately half an hour later the officers stopped another truck at a store in Tavernier about ten miles from the Howard Johnson‘s, and asked the driver, defendant Kuhn, for identification. When Kuhn stated that the truck belonged to Kirkland even though it was registered in Hendrickson‘s name, the officers arrested Kuhn for conspiracy and took him to the police station. They removed Kuhn‘s closed briefcase from behind the passenger seat of the pick-up truck and inventoried the contents at the police station. In it they found marijuana.
In reviewing an appeal from the denial of a sworn motion to dismiss, we must determine whether the undisputed facts relied upon by the state presented a prima facie case of guilt. See State v. Davis, 243 So.2d 587 (Fla. 1971); however, the state contends that its traverse, filed in response to defendants’ sworn motion to dismiss, disclosed the existence of a material issue of fact precluding dismissal under
Turning to the merits of defendants’ arguments, we first address Hendrickson‘s appeal. According to the stipulation, Hendrickson was found sitting in the cab of a truck. He did not have access to the rear portion of the truck in which the marijuana was located and the back of the truck was covered by a camper which Hendrickson could not enter from the cab. The stipulation is silent concerning whether Hendrickson possessed the keys to the truck or whether the rear of the truck was, in fact, locked.
In order to establish a prima facie case of constructive possession of marijuana against Hendrickson, the state was required to demonstrate three elements: his ability to exercise dominion and control over the contraband; his knowledge of the presence of the contraband; and his awareness of the illicit nature of the contraband, Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). We find that the state failed to overcome the first obstacle, the element of control. Even though the discovery of contraband in
The decision of the supreme court in Brown is consistent with the decisions in Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975) (marijuana in plain view, but defendant guest had no control over premises) and Metzger v. State, 395 So.2d 1259 (Fla. 3d DCA 1981) (no constructive possession by a guest who may not have been aware of the contraband). In Brown the contraband was scattered throughout the house, most of it in plain view. The obvious presence of the contraband and Brown‘s joint possession of the premises, provided the opportunity for him to exercise dominion and control. As far as Hendrickson is concerned, however, the state failed to establish his ability to exercise dominion and control over the contraband which could not be reached from the cab of the truck. Cf. S.W. v. State, 431 So.2d 342 (Fla. 2d DCA 1983) (beer found beneath juvenile‘s feet in front seat of automobile sufficient to show ability to exercise control). The default in its proof defeated the state‘s case.
Next, we address Kirkland‘s appeal. According to the stipulation, the police officers arrested Kirkland when he ran from the Howard Johnson‘s parking lot. Although the officers found his identification in a luggage bag in the cab of a pick-up truck, they were not able to state that he had been driving the truck. No keys were found and no evidence placed him in the truck with the marijuana. In fact, the stipulation states: “The police have no information or evidence ... that Kirkland was ever personally in the truck itself.” Under established law, the mere presence of Kirkland‘s identification in a truck which held marijuana and the fact that he ran from the police were insufficient to establish a prima facie case of guilt. Cf. Falin v. State, 367 So.2d 675 (Fla. 3d DCA 1979) (no proof when defendant last in room or evidence that drugs had been present during time defendant was present). Again, the omission warranted dismissal.
As for Kuhn‘s motion to suppress, we review the stipulated facts from a different perspective. We must determine whether the search, conducted without a warrant, was reasonable under constitutional standards.
Whether a search conducted after the officers return to the police station is in fact incident to the earlier arrest was considered by the Court in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). In Preston the Court held that protection of the police and the preservation of the evidence justified a search incident to arrest. These purposes are no longer present when the search is conducted at a time or place remote from the arrest; accordingly, such searches may not be legitimized as incident to arrest. See also, Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968).
Evidence obtained from the belated search of Kuhn‘s briefcase at the police station should have been suppressed because the search was neither incident to an arrest nor based upon probable cause coupled with exigent circumstances which would have obviated the need to obtain a search warrant. Furthermore, the search cannot be upheld as an inventory search because the state failed to show that the police complied with the requirements of Miller v. State, 403 So.2d 1307 (Fla. 1981).
In summary, the warrantless search of Kuhn‘s briefcase was reasonable if conducted incident to arrest at the scene of the arrest; or at the station if based upon probable cause to believe the briefcase contained contraband; or if conducted as an inventory search in accordance with requirements of law. The search of Kuhn‘s briefcase met none of the required standards and the court should have suppressed the evidence.
For these reasons, we reverse the orders entered by the trial court and remand the cause with directions to discharge all defendants.
HUBBART, Judge (concurring in part; dissenting in part).
I agree entirely with the court‘s opinion herein, save for its reversal of the defendant Kuhn‘s conviction based on the search and seizure claim. I think the warrantless police search of Kuhn‘s pickup truck was based on probable cause and thus was constitutionally reasonable under the Carroll moving vehicle exception to the search warrant requirement rule. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted in toto by
The probable cause for the search of the defendant‘s pickup truck was ample in this case. It consisted of the following: (1) the defendant was observed by police traveling in a pickup truck in tandem with two other trucks, (2) a suspicious radio transmission was overheard which was sent by an occupant of one of the three trucks indicating that the subject trucks contained something which the occupants wished to hide from the police, and (3) two of the other trucks were subsequently stopped by the police, searched, and marijuana seized therefrom. It seems elementary to me that given this showing the police had a reasonable basis to believe that the third truck in this tandem [i.e., the defendant‘s truck] also contained marijuana, and were therefore justified in stopping and searching the defendant‘s truck. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Gillum, 428 So.2d 755 (Fla. 2d DCA 1983); Mansfield v. State, 389 So.2d 292 (Fla. 3d DCA 1980); Cameron v. State, 112 So.2d 864, 873 (Fla. 1st DCA 1959).
All else follows from the above probable cause showing. The police were thereafter justified in searching the briefcase seized from the subject truck under the Carroll moving vehicle exception to the search warrant
I would therefore reverse the convictions of the defendants Hendrickson and Kirkland for the reasons stated in the court‘s opinion. I would, however, affirm the defendant Kuhn‘s conviction on the ground that the trial court properly denied Kuhn‘s motion to suppress the marijuana seized from his pickup truck.
Notes
Rule 3.190(c) states in part:
However, the court may at any time entertain a motion to dismiss on any of the following grounds:
... .
(4) There are not material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which such motion is based should be specifically alleged and the motion sworn to.
Rule 3.190(d) states:
Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss. Such demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss.