Metzger v. State

395 So. 2d 1259 (1981)

Clinton METZGER and Cecil Whitaker, Appellants,
v.
The STATE of Florida, Appellee.

No. 79-2371.

District Court of Appeal of Florida, Third District.

March 31, 1981.

Mark King Leban, Miami, Mechanic & Goldstein, North Miami, Rosen, Portela, Bronis, Angueira & Clay, Miami, for appellants.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before BARKDULL, HENDRY and NESBITT, JJ.

PER CURIAM.

We reverse the conviction of defendant Whitaker on the ground that the state failed to establish his constructive possession of the marijuana found aboard the "Excuse Me." Whitaker was shown only to be a passenger on a vessel owned and operated by his co-defendant; neither the odor of the marijuana contained in the forward cabin, nor the slight amount (less than a handful) of marijuana scattered over the vessel's deck (where Whitaker was situated) was sufficient circumstantial evidence of Whitaker's knowledge and ability to control the contraband to exclude every reasonable hypothesis except that of guilt. Harvey v. State, 390 So. 2d 484 (Fla. 4th DCA 1980).

We affirm defendant Metzger's conviction, because we find that his motion to suppress was properly denied. The arresting officers appropriately stopped the "Excuse Me."

Affirmed in part, and reversed in part.