FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Margaret O. Steinbeck,
Rachael E. Bushey of O'Brien Hatfield, P.A., Tampa, for
Jo Bondi, Attorney General, Tallahassee, and Dawn S. Tiffin,
Assistant Attorney General, Tampa, for Appellee.
Sanders challenges his conviction and sentence for
trafficking in over 200 grams of methamphetamine. Sanders
raises several issues on appeal, only one of which has merit.
Because the State failed to present sufficient evidence to
establish that Sanders was in constructive or actual
possession of contraband, the motion for judgment of
acquittal should have been granted. Therefore, we reverse.
March 28, 2014, Detective Torres was working with a
surveillance team watching a residence that was under
suspicion for drug-related activity. Detective Torres
observed a man and woman come out of the residence and
approach a van parked in the driveway. From her vantage point
at least 200 feet from the residence, Detective Torres was
only able to determine that the man was white and that he was
carrying a bag over his left shoulder. The woman entered the
van on the driver's side. The man entered the van through
the rear sliding door on the passenger's side; Detective
Torres was unable to see if the man sat in the front or rear
of the van after entering. As the van pulled away from the
residence, Detective Torres communicated to area units what
she had observed, including the van's direction of
Tarsia responded and began to follow the van. He noted that
the window tint was very dark and that as a result of the
dark tint, he could not see any movement within the van.
Detective Tarsia initiated a traffic stop due to the dark
window tint and upon observing the van fail to stop at a stop
sign. As Detective Tarsia approached the driver's side of
the van, he observed five people inside: a woman in the
driver's seat, a white man in the front passenger's
seat, a white man in the back seat on the passenger's
side, a child in the middle of the back seat, and a woman in
the back seat behind the driver. Detective Tarsia identified
Sanders as the white man seated in the back seat on the
passenger's side. Detective Tarsia testified that Sanders
was acting "unusual" in that he avoided eye contact
with the detective. He also observed two unzipped bags
between Sanders' feet that looked like "cooler type
bags" or duffle bags.
Tarsia issued the driver two traffic warnings and then asked
the driver for consent to search the van. The driver
consented to the search, and the occupants were asked to exit
the vehicle; the bags remained inside. While conducting the
search, Detective Tarsia observed a plastic bottle containing
"a lot of substance down at the bottom with some liquid,
" a hair dryer, liquid Drano, and salt inside one of the
bags. Based on Detective Tarsia's training and
experience, he believed that the contents of the bag were
used in the manufacture of methamphetamine. Detective Tarsia
arrested Sanders and searched his person; nothing of
evidentiary value was found as a result of the search.
Gonzalez arrived at the scene and took custody of the bag.
The substance in the plastic bottle tested positive for the
presence of methamphetamine. A sample of the liquid that was
seized was submitted to the Florida Department of Law
Enforcement (FDLE) for testing, and an FDLE laboratory
analyst confirmed that the liquid contained methamphetamine.
trial, after the State rested its case, Sanders moved for a
judgment of acquittal. Sanders argued that the State had
failed to establish that he had been in actual or
constructive possession of the bag containing
methamphetamine. The State argued that Sanders had been in
actual possession of the bag because it was within his
arm's reach and under his exclusive control. In the
alternative, the State asserted that Sanders had been in
constructive possession of the bag. The court denied the
motion, finding that the State presented a prima facie case
of actual possession due to the location of the bag and
Sanders' unusual behavior. Sanders renewed his motion for
judgment of acquittal at the close of the evidence, and it
was again denied. The jury found Sanders guilty as charged.
possession crimes may be either actual or constructive."
Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA
2009) (citing Chicone v. State, 684 So.2d 736, 738
n.2 (Fla. 1996)). "Possession is actual when the
contraband is (1) in the defendant's hand or on his
person, (2) in a container in the defendant's hand or on
his person, or (3) within the defendant's 'ready
reach' and the contraband is under his
control." Id. (quoting Harris v.
State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007)). To
establish constructive possession, the State must "prove
beyond a reasonable doubt that the defendant knew of the
presence of the illegal items [and] was able to exercise
dominion and control over them." Hargrove v.
State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006) (quoting
K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA
2004)). "Under either theory of possession, then, the
State must prove that the accused had control of the
contraband. And . . . under either theory the ...