Friday, November 19, 2010

Law Updates for November 12, 2010

Quick, 35 FLW 2451, 4th DCA, Jury instructions - Error to deny def's request for jury instruction on the affirmative defense of lack of knowledge that substance he possessed was cocaine where he testified that he did not know the glass pipe in which cocaine residue was found contained cocaine at exact time of his arrest. Error not harmless where lack of knowledge of what the pipe contained was def's sole defense.

M.L. 35 FLW 2456, 3rd DCA, Officer's warrant-less of a seizure of a pipe with residue. Officer observed pipe partially sticking out of a bag on the floor near where juvenile was sleeping. Was not justified under the plain view exception. State failed to present evidence that it was immediately apparent to officer that partially concealed pipe in the bag contained evidence of a crime or illegal paraphernalia, or that the officer, prior to seizure, had probable cause to believe that the pipe was evidence of criminal activity.

Bennett, 35 FLW 2461, 2nd DCA, Trafficking in Cocaine-Constructive Possession - Drugs found in living room and bedroom of cottage, some of it in plain view, where evidence failed to show def had control over the premises and no independent proof that the def had dominion and control over the contraband. Fact that def's drivers license and a letter addressed to him were found on or in cardbox box containing men's clothing and sandwich bag containing drugs insufficient to establish dominion and control over contraband where evidence did not show the cottage was def's residence or suggest how many others have visited or used cottage and did not prove who owned the clothes in the open box.

The Law Offices of Roger P. Foley,P.A.

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