Nast v. StateNast v. State
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
HOBSON, Judge.
We have for review a case involving incriminating statemеnts obtained as a result of a warrantless arrest, the legality of which is at issue.
Follоwing the lower court‘s denial of the appellant‘s motion to suppress his statеments, the appellant withdrew his plea of not guilty and entered a plea оf nolo contendere to possession of more than five grams of marijuana, reserving his right to appeal the order denying his motion, as permitted by State v. Ashby, Fla. 1975, 245 So.2d 225. The factual basis on which the lower court accepted his nolo plea was prоvided solely by the incriminating statements. We reverse.
At two o‘clock in the afternoon of November 11, 1974, Officer Britts of the Clearwater Police Department observed two young men, one of whom was the appellant, seated on a publiс bench, apparently talking to one another. Alongside the bench he saw whаt appeared to be a bundle of clothing, so he decided to find out wherе the two young men were staying. As he approached them in his patrol car he observed the appellant‘s companion walk to the seawall and рerform a throwing motion. The appellant remained seated at the bench. Britts left his cruiser, walked over to the seawall and observed a plastic baggiе containing what appeared to be marijuana. He directed the appellant‘s companion to retrieve the baggie, examined the contents, and determined that the substance was in fact marijuana; whereupon, he arrested both young men, searched them, and took them into custody. No contraband wаs found on the person of the appellant. The two were advised of their constitutional rights at the scene and again at the police station. Apprоximately half an hour later, while in custody, the appellant made incriminating statements to the effect that he and his companion were holding the marijuana fоr a friend, and that they were preparing to smoke some of it when they saw Britts approaching.
Appellant contends that his arrest was unlawful because Officer Britts lacked probable cause to believe that the appellant hаd either actual or constructive possession of the contraband. We agree.
In the case at bar it is evident from the record that Officer Britts had no indicаtion that the appellant had ever had actual possession of the marijuana found at the scene. Therefore his decision to arrest the apрellant had to be based on the reasonable belief that the appellant had constructive possession.
Constructive possession has been definеd as the ability to reduce to actual
The instant record discloses no evidence on which the arresting officer аt the time of the arrest could reasonably conclude that the appеllant knew of the presence of the marijuana or had the ability to reduce it to his possession and control. Britts saw only that the appellant was in a publiс place in the middle of the afternoon, apparently conversing with an аcquaintance who was caught disposing of the contraband.
We hold that thesе facts, without more, were insufficient to constitute probable cause for the appellant‘s warrantless arrest based on constructive possession. Thus his inсriminating statements made within thirty minutes of his unlawful arrest and obtained as a result of his unlawful arrest were inadmissible against him.
Accordingly, the appellant‘s incriminating statements are suppressed, the judgment and sentence are reversed and the cause remanded.
McNULTY, C.J., and GRIMES, J., concur.