Wednesday, June 29, 2011

Law Updates for June 24, 2011

Gizaw, 36 FLW 1266, 2nd DCA, Constructive Possession - Error to deny JOA where State did not establish defendant's constructive possession of cannabis discovered in suitcase in trunk of defendant's car during a permissive search.  No independent proof that defendant had knowledge of presence of can or had dominion and control over suitcase containing cannabis where suitcase contained no fingerprints, only other items in suitcase were jeans of a size fitting passenger and defendant's unrefuted testimony establishing defendant was not in the exclusive possession of vehicle as the passenger had keys to vehicle and access to trunk.  State failed to show the $939 cash in defendant's possession was in any way connected with dealing of cannabis as defendant's unrefuted testimony that money was for school.

Fernandez. 36 FLW 1274, 3rd DCA, Trial court improperly denied motion to suppress evidence obtained when police, surveilling defendant's home which was surrounded by tall fences and remote-controlled gates, capitalized on defendant's opening the gate for the purpose of his leaving the property by quickly entering the property and blocking the defendant's exit, after which the defendant refused to sign a consent form for a search but nonetheless opened the door for the police, who entered and found 144 marijuana plants.  Officer entered the opened gate committed a trespass.  Opening of the gate was not an open invitation to the public, or by extension to the police.  Consent later granted was tainted and no brake in the chain of earlier events.

Dortch. 36 FLW 1302, 1st DCA, Fleeing and eluding - Reversible and harmful error to allow into evidence that the car the defendant was in fleeing was stolen three months earlier.  Evidence was not necessary to describe events that took place after car was stopped and defendant fled, justification for the pursuit was not a material fact in dispute.

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

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