Criminal Law Alert

Trial court erred; “detection by a police officer of the odor of burnt cannabis emanating from a vehicle, by itself, constitutes sufficient ‘facts and circumstances’ to establish probable cause to search the person of an occupant of that vehicle.”

State v. Williams, 1D05-2118 and 1D05-2128, Opinion filed September 14. 2007.

Williams, charged with intent to sell or deliver cannabis and possession of drug paraphernalia, filed a motion to suppress the drug evidence found on his person. The trial court granted the motion and the State appealed.

The record reflected that Williams was stopped while driving a vehicle with a license plate registered to a different vehicle. The officers, standing next to the vehicle, “recognized” the “strong odor of burnt cannabis” coming out from the passenger-side window. Williams was searched after he and the passenger were “directed to exit” the vehicle and twelve bags of cannabis were found in Williams’ sweatshirt pocket. The trial court granted Williams’ suppression motion concluding the officers had probable cause to search the vehicle, but did not have probable cause to “extend the search to Williams’ person.” The State appealed.

In its analysis, the 1st DCA concluded that under “well-settled Florida law, the detection by a police officer of the odor of burnt cannabis emanating from a vehicle, by itself, constitutes sufficient ‘facts and circumstances’ to establish probable cause to search the person of an occupant of that vehicle.” The 1st DCA distinguished cases where the detection was based “solely on a trained police dog alerting to the vehicle” because it has held that the law enforcement officers “did not have probably cause to search the person of an occupant of a vehicle.” The distinction was made because a trained narcotic’s dog “superior olfactory sense also enables it to ‘detect not only the presence of drugs, but also the fact that drugs have been present in a particular location at some time in the recent past,’”citing State v. Griffin, 949 So. 2d 309, 319 (Fla. 1st DAC 2007).

Based on the above, the 1st DCA concluded in this instance, where “an experienced police officer smells the odor of burnt cannabis, the risk of smelling residual odors is not present and the odor itself provides the basis for probable cause.” The Court reversed finding probable cause existed for the search of William’s person.

Assistant Attorney General Bryan Jordan represented the state.

Opinion


Highly prejudicial comment may have contributed to conviction; error is not harmless.

Chavers v. State, 4D06-3211, Opinion filed September 12, 2007.

Chavers, convicted and sentenced on the charges of possession of cocaine and marijuana, appealed claiming that the “prosecutor made several improper statements in closing argument meriting a new trial.”

The record revealed two different versions of events leading up to the arrest of Chavers. The police officer’s contend that Chavers ran a red light, when they activated their lights and siren, a chase ensued because Chavers did not stop. They saw only Chavers in the vehicle and alleged Chavers was “throwing small plastic packets out to the driver’s side window. Chavers “eventually” pulled over and lab tests later confirmed the officers collected, in plain view from inside the vehicle, 1.84 grams of marijuana and 83 milligrams of cocaine. For the defense, Alan McCullon testified he was in the vehicle with Chavers when a police vehicle activated its lights from behind them. Chavers pulled over to the side of the road, the police vehicle pulled over behind them, and when no one got out of the police vehicle, Chavers proceeded to drive off and then dropped McCullon off at the friend’s house. McCullon testified that they were not speeding, did not run a red light, that Chavers did not throw anything out of the window and to his knowledge, there were no drugs in the vehicle. Later, Chavers called McCullon to tell him he was arrested and informed McCullon he would “need to testify to what happened that day.” During closing argument, the prosecutor made several statements indicating that Chavers and McCullon “discussed their testimony and said this is what we’re going to say happened on this day.” Defense counsel’s objection was denied.

While the jury acquitted Chavers of “fleeing and eluding,” the 4th DCA determined that the jury did not believe McCullon’s testimony (seeing no drugs in the vehicle), thus, convicting Chavers on the drug charges. The 4th DCA concluded that because the prosecutor’s “highly prejudicial comment” may have swayed the jury, it “could not say beyond a reasonable doubt that it did not contribute to the conviction,” and held the “error is not harmless.”

Assistant Attorney General Don Rogers represented the state.
Opinion


Previously issued opinion is withdrawn; trial court’s original holding is reinstated.

Fender v. State, 4D06-927 (On Motion for Rehearing), Opinion filed 09/12/07.

On June 20, 2007, the 4th DCA issued an opinion reversing Fender’s “felony DUI conviction, finding the State had failed to present sufficient proof that Fender had three prior DUI convictions.” Fender v. State, 2007 WL 1755617 (Fla. 4th DCA June 20, 2007). On motion for rehearing, the State alleged “that this court overlooked section 316.193(12), Florida Statutes (2004) in making this determination.” In granting the motion, the court noted it normally would not consider an issue raised for the first time in a motion for rehearing, however, it “has the power to reconsider and correct erroneous rulings in exceptional circumstances and where reliance on the previous decision would result in manifest injustice.” State v. Owen, 696 So. 2d 715, 720 (Fla. 1997).

Section 316.193(12), Fla. Stat. (2004) provides: “If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence. However, such evidence may be contradicted or rebutted by other evidence.”

The 4th DCA concluded that “the evidence submitted by the State created a rebuttable presumption of the prior convictions and was sufficient, by itself, to prove Fender’s three prior DUI convictions.” Since Fender did not “present evidence at trial rebutting this presumption,” the 4th DCA withdrew its previously issued opinion and reinstated “the trial court’s prior conviction and sentence.”

Assistant Attorney General Thomas Palmer represented the state.

Opinion


Trial Court correctly applied Frye; experts’ testimony should have been limited.

Demeniuk v. State, 5D06-401, Opinion filed 09/14/07.

Demeniuk, appealed her conviction for the first-degree murder of her twin four-year-old sons, arguing the trial court erred by limiting the scope of her expert testimony regarding her insanity defense; by denying her motion to exclude a State expert who “surreptitiously assisted” the State during a deposition of one of her experts; and by denying her proposed jury instructions on involuntary intoxication and excusable homicide.

Demeniuk argued that her experts’ testimony should not have been limited and should not have been subjected to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The 5th DCA originally held a Frye hearing was necessary and ordered the lower court to conduct one. The 5th DCA now holds that the trial court correctly applied Frye by “prohibiting the defense experts from testifying about new and novel scientific principles that were not generally accepted in the scientific community.” Thus, the law of case doctrine bars this issue.

While the “State’s conduct in soliciting the expert’s assistance during the deposition without disclosing his presence was improper,” Demeniuk failed to “demonstrate how she was procedurally prejudiced by this conduct,” therefore, the trial court “did not abuse its discretion in failing to exclude the State’s expert.” Further, Demeniuk failed to show “that the instructions given did not adequately cover her defenses or that her proposed instructions accurately stated the law,” citing Stevens v. State, 787 So. 2d 747, 756 (Fla. 2001).

Assistant Attorney General Pamela Koller represented the state.

Opinion