As the old saying goes, police work is only easy in a police state. Assuming this to be true, detectives in Iran need only an 8th grade education to jump to conclusions and imprison their citizens. The reverse is supposed to be true here in America. We have freedom. Freedom causes police work to be more difficult. And, we do have some of the best police in the world as a result, though I suspect some of them know the law “too well” (which, we’ll get into later). Every now and then, I sense we are inching closer to a police state, and this movement finds its genesis in court decisions dealing with evidentiary issues. For those of you unfamiliar with the criminal justice system, the easier it is to prove a crime, the closer we become to a police state. It’s real easy in China. Yes, I know this sounds a bit extreme, and the term “police state” is boring and abused. But I feel like that clichéd old frog that never jumps out of the boiling water because the temperature increases are so subtle. So, let’s talk about one of those subtle temperature increases, found in the case of Jennings v. State, 124 So. 3d 257 (Fla. 3rd DCA 2013).
Jennings was driving a car with two other occupants when it was stopped for a traffic violation. Jennings exited the car and walked up to the officer with his license in hand, acting “very, very nervous.” As the officer and Jennings were talking, the backseat passenger took off running, but was caught by a back-up officer. To make matters even more suspicious, the front seat passenger then attempted to flee, but he too was caught. And, as you might expect, the reason why these folks were running is that, lying on the front passenger floorboard, there was a gym bag full of two kilos of cocaine, and over $30,000 in cash. Jennings was charged with trafficking in cocaine, and the jury found him guilty of a lesser offense of attempted trafficking in cocaine. The officers testified that, allegedly, the cocaine was in plain view, open for everyone to see–including driver Jennings.
Now, I have a bit of internal conflict about this officer’s testimony that two kilos of cocaine were in plain view, due to the duffel bag being open for all to see. After defending criminal cases for over 20 years, it never ceases to amaze me that drug traffickers don’t bother to hide their drugs. Zipping up a duffel bag, not that hard, right? You mean to tell me that, when this car was being pulled over, Jennings and the passengers just left two kilos wide open for everyone to see? Am I supposed to believe that? Yet, the internal conflict arises from the fact that, yes, some criminals are simply that dumb. The stupidity cannot be denied. So, it’s a tough call, but the officer’s testimony that the cocaine was “in plain view” is the one statement that sent Jennings to prison. The “in plain view” statement keeps this case from being thrown out of court. If the officer testified that the duffel bag full of two kilos of cocaine was zipped up, and its contents were unknown, this case would have been thrown out of court under the proof requirements of constructive possession.
Jennings appealed his conviction, arguing two important issues, but I’m only going to address the constructive possession/plain view issue (the other issue, involving the state’s closing argument, is more important, but it’s the Friday of Memorial Day Weekend, so something’s got to give). Jennings was not the only person in the car, so he did not have exclusive possession of the gym bag full of cocaine. As such, “the State must present competent, substantial evidence of the accused’s knowledge of the presence of contraband and his or her ability to exercise dominion and control over it.” Id at 262. Now, you see why the officer claimed that the cocaine was in “plain view”? Because, plain view is proof that Jennings had knowledge of the presence of the cocaine–he could see it with his own eyes. Of course, we all know this gym bag was probably zipped up tight to where nothing was visible, but who is going to testify that it was, in fact, zipped up? Nobody in their right mind would claim ownership of a gym bag with two kilos of coke, so the officer’s convenient testimony that the bag was wide open exposing its contents went unchallenged, as it had gone unchallenged a thousand lies before. This sort of convenient plain view testimony is very common in constructive possession cases, and I can’t help but think that these officers have some bit of knowledge regarding the impact of their testimony. And yes, I also realize that criminals are simply dumb enough to leave cocaine out in the open during a traffic stop. I get that. Like I said earlier, this is a tough call, but my experience (bias?) makes me believe that the cops are lying on this issue. Just saying.
Jennings also alleged that the bag was not in his plain view, but was opened when he left the vehicle. A nice compromise in which he doesn’t have to call the cops liars. But, the appeals court didn’t buy it because of “(1) his attempt to keep the officer away from the car; (2) his extreme nervousness; and (3) the officer’s testimony that he had watched the other passengers and they made no movements towards the front passenger seat floorboard.” Id. at 263. Again, more convenient officer testimony (yes, just because it’s convenient doesn’t make it a lie, I know).
The court also spent more time on the issue of dominion and control than expected, reasoning that Jennings “knowledge, of course, does not by itself establish the element of dominion and control.” The court cited the Florida Supreme Court case of Brown v. State, in which they held that a constructive possession case cannot be dismissed by the judge when the drugs are located within the defendant’s plain view, the decision must rest with the jury. 428 So. 2d 250 (Fla. 1983). The court reasoned that a driver of a vehicle has control of that vehicle, so when you combine control of the vehicle with drugs in plain view, the dominion and control element is satisfied. Unfortunately, the court in Jennings went a little too far in holding that plain view is not the only way to establish “knowledge”, that the odor of a drug may also establish knowledge. Not really sure that the odor of cannabis had anything to do with the Jennings case, but the appeals court seemed bothered by a previous ruling in which the odor of cannabis established knowledge of the cannabis in the car, yet said odor could not establish dominion and control of the drug. Williams v. State, 110 So. 3d 59 (Fla. 2d DCA 2013). Again, their disagreement with Williams seems to be irrelevant here.
So, we now know that if you are driving a car with several passengers and drugs–chances are–you will be arrested for the drugs because you have control of the car, and the cops will lie about the drugs being in plain view. Sure, this is jaded, pessimistic view of things. But I’m just reporting the facts, mam. And the fact is, cops need these drugs to be in plain view if they’re going to have any chance of winning their case. Yes, you could argue that you didn’t see the drugs. After all, who leaves out several kilos of coke for everyone to see in a car on a stop for a traffic ticket? Not even Scarface himself would be so bold/stupid. And, who really believes that, after having several minutes to think things over while the red and blue lights are flashing; no one bothered to zip up the gym bag? So, the same passengers that attempted to flee the scene just simply left two kilos out in the open for everyone to see. Mighty convenient.