Sanders v. State ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARCUS FRANKLIN SANDERS, )
DOC# 788118 )
)
Appellant, )
)
v. ) Case No. 2D15-2360
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed February 8, 2017.
Appeal from the Circuit Court for Lee
County; Margaret O. Steinbeck, Judge.
Rachael E. Bushey of O'Brien Hatfield,
P.A., Tampa, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn S. Tiffin, Assistant
Attorney General, Tampa, for Appellee.
BLACK, Judge.
Marcus Sanders challenges his conviction and sentence for trafficking in
over 200 grams of methamphetamine. Sanders raises several issues on appeal, only
one of which has merit. Because the State failed to present sufficient evidence to
establish that Sanders was in constructive or actual possession of contraband, the
motion for judgment of acquittal should have been granted. Therefore, we reverse.
I. Background
On March 28, 2014, Detective Torres was working with a surveillance
team watching a residence that was under suspicion for drug-related activity. Detective
Torres observed a man and woman come out of the residence and approach a van
parked in the driveway. From her vantage point at least 200 feet from the residence,
Detective Torres was only able to determine that the man was white and that he was
carrying a bag over his left shoulder. The woman entered the van on the driver's side.
The man entered the van through the rear sliding door on the passenger's side;
Detective Torres was unable to see if the man sat in the front or rear of the van after
entering. As the van pulled away from the residence, Detective Torres communicated
to area units what she had observed, including the van's direction of travel.
Detective Tarsia responded and began to follow the van. He noted that
the window tint was very dark and that as a result of the dark tint, he could not see any
movement within the van. Detective Tarsia initiated a traffic stop due to the dark
window tint and upon observing the van fail to stop at a stop sign. As Detective Tarsia
approached the driver's side of the van, he observed five people inside: a woman in the
driver's seat, a white man in the front passenger's seat, a white man in the back seat on
the passenger's side, a child in the middle of the back seat, and a woman in the back
seat behind the driver. Detective Tarsia identified Sanders as the white man seated in
the back seat on the passenger's side. Detective Tarsia testified that Sanders was
acting "unusual" in that he avoided eye contact with the detective. He also observed
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two unzipped bags between Sanders' feet that looked like "cooler type bags" or duffle
bags.
Detective Tarsia issued the driver two traffic warnings and then asked the
driver for consent to search the van. The driver consented to the search, and the
occupants were asked to exit the vehicle; the bags remained inside. While conducting
the search, Detective Tarsia observed a plastic bottle containing "a lot of substance
down at the bottom with some liquid," a hair dryer, liquid Drano, and salt inside one of
the bags. Based on Detective Tarsia's training and experience, he believed that the
contents of the bag were used in the manufacture of methamphetamine. Detective
Tarsia arrested Sanders and searched his person; nothing of evidentiary value was
found as a result of the search.
Detective Gonzalez arrived at the scene and took custody of the bag. The
substance in the plastic bottle tested positive for the presence of methamphetamine. A
sample of the liquid that was seized was submitted to the Florida Department of Law
Enforcement (FDLE) for testing, and an FDLE laboratory analyst confirmed that the
liquid contained methamphetamine.
At trial, after the State rested its case, Sanders moved for a judgment of
acquittal. Sanders argued that the State had failed to establish that he had been in
actual or constructive possession of the bag containing methamphetamine. The State
argued that Sanders had been in actual possession of the bag because it was within his
arm's reach and under his exclusive control. In the alternative, the State asserted that
Sanders had been in constructive possession of the bag. The court denied the motion,
finding that the State presented a prima facie case of actual possession due to the
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location of the bag and Sanders' unusual behavior. Sanders renewed his motion for
judgment of acquittal at the close of the evidence, and it was again denied. The jury
found Sanders guilty as charged.
II. Discussion
"All possession crimes may be either actual or constructive." Sundin v.
State, 27 So. 3d 675, 676 (Fla. 2d DCA 2009) (citing Chicone v. State, 684 So. 2d 736,
738 n.2 (Fla. 1996)). "Possession is actual when the contraband is (1) in the
defendant's hand or on his person, (2) in a container in the defendant's hand or on his
person, or (3) within the defendant's 'ready reach' and the contraband is under his
control." Id. (quoting Harris v. State, 954 So. 2d 1260, 1262 (Fla. 5th DCA 2007)). To
establish constructive possession, the State must "prove beyond a reasonable doubt
that the defendant knew of the presence of the illegal items [and] was able to exercise
dominion and control over them." Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d
DCA 2006) (quoting K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d DCA 2004)). "Under
either theory of possession, then, the State must prove that the accused had control of
the contraband. And . . . under either theory the requisite control is not established by
an accused's mere proximity to the contraband." G.G. v. State, 84 So. 3d 1162, 1164
(Fla. 2d DCA 2012) (citation omitted); accord Meme v. State, 72 So. 3d 254, 256 (Fla.
4th DCA 2011).
The State's evidence established only that the contraband was within
Sanders' ready reach not that it was under his control. The State was unable to
establish that Sanders was the white man observed carrying a bag into the van.
Additionally, there were two open duffle bags between Sanders' feet, and there was no
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evidence establishing that the bag found to contain contraband was the same bag that
the man—even had it been Sanders—brought into the van.
In short, the only evidence presented by the State to establish possession
was Sanders' close proximity to the bag containing contraband and his "unusual"
behavior. This court has repeatedly held that such evidence is insufficient. See Smith
v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013); Rangel v. State, 110 So. 3d 41, 44
(Fla. 2d DCA 2013); Jiles v. State, 984 So. 2d 622, 623 (Fla. 2d DCA 2008); Hargrove,
928 So. 2d at 1256; Cruz v. State, 744 So. 2d 568, 569 (Fla. 2d DCA 1999); E.A.M. v.
State, 684 So. 2d 283, 284 (Fla. 2d DCA 1996); Skelton v. State, 609 So. 2d 716, 717
(Fla. 2d DCA 1992).
Because the State failed to present sufficient proof of possession, the trial
court erred in denying Sanders' motion for judgment of acquittal. We therefore reverse
Sanders' judgment and sentence and remand for discharge.
Reversed and remanded with directions.
WALLACE and LaROSE, JJ., Concur.
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